DHV16 v Minister for Home Affairs

[2025] FedCFamC2G 1133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DHV16 v Minister for Home Affairs [2025] FedCFamC2G 1133

File number(s):

SYG 1875 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

21 July 2025

Catchwords:

MIGRATION – Immigration Assessment Authority –Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority was required to invite the applicant to provide information pursuant to s 473DC of the Migration Act 1958 (Cth) – whether the Authority must consider a sur place claim –  where the Authority is entitled to disagree with the delegate’s evaluation of the material –  whether a previous Federal Circuit Court decision identified the pseudonymised applicant –  grounds of judicial review have no merit –  application dismissed with costs.

Legislation:

 Migration Act 1958 (Cth) ss 473CB, 473DA, 473DC 473DD, 473DE, 473DC

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151;(2020) 280 FCR 26

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

DBX16 v Minister for Immigration and Border Protection [2021] FCA 238

DGZ16 v Minister for Border Protection (2018) 258 FCR 551; [2018] FCAFC 1

DHV16 v Minister for Immigration & Anor [2018] FCCA 349

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

FIV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 297

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46

Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

1           Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348

SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113

SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 585

Waterford v Commonwealth [1987] HCA 25;(1987) 163 CLR 54

WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116

Division:

Division 2 General Federal Law

Number of paragraphs:

120

Date of hearing:

7 July 2025

Place:

Parramatta

Solicitor for the Applicant:

Mr Taylor of Sydney West Legal and Migration

Solicitor for the First Respondent:

Mr Knuckey of HWL Ebsworth

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1875 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DHV16

Applicant

AND:

 MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	21 JULY 2025

THE COURT ORDERS THAT:

1.The Application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $12,000.00.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of the Immigration Assessment Authority (the Authority) decision dated 14 June 2018 affirming a decision of a delegate of the Minister for Home Affairs (the delegate) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the reasons outlined below, the application should be dismissed.

   BACKGROUND

3. The applicant is a citizen of Sri Lanka. He arrived in Australia on 19 November 2012 as an unauthorised maritime arrival.

4. On 7 January 2013, the applicant participated in an entry interview, where, among other things, he claimed to have left Sri Lanka because he was in danger due to his family's involvement with the Liberation Tigers of Tamil Eelam (LTTE).

5. On 5 October 2016, by email from his representative, the applicant made an application for a Safe Haven Enterprise (Subclass 790) Visa (SHEV).  Attached to the application, amongst other things, was a statement of claim and a written testimony, prepared in the course of his participation in the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).  In summary, those documents indicated that the applicant sought Australia's protection on the basis that he feared harm in Sri Lanka for reason of his work as a Liberation Tigers of Tamil Eelam (LTTE) tax collector and due to his family's LTTE connections.  The applicant stated that he was, in 1997, taken by the Criminal Investigations Department (CID) and severely tortured. The applicant made other claims concerning his asserted fear of harm, including the following claim concerning his sister (Y):

   My sister, (Y) was also a member of the LTTE who engaged on combat during the last phase of the war, since I arrived in Australia, I learned that my sister was gang raped by Sri Lankan army soldiers in 2013.  This incident was covered in the media.  Y fled to the U.K. after this incident and at present is residing in the U.K.  Y was targeted by the authorities in 2013 when they became aware of her involvement in the LTTE after she was released from the RDP camp.

6. On 26 May 2016, the applicant attended an interview (SHEV interview) with the delegate and provided additional evidence in support of his protection claims.

7. On 19 August 2016, the delegate refused to grant the applicant a SHEV (CB 335). In short, the delegate found that the applicant did not have a political profile that would cause him to have a well-founded fear of persecution, and was not satisfied that the applicant had a sister.

8. On 31 August 2016, the matter was referred to the Authority under Part 7AA of the Act. On 13 October 2016, the Authority affirmed the delegate’s decision.

9. On 4 November 2016, the applicant applied for judicial review of the Authority’s decision at the Federal Circuit Court (as it was then called). On 14 March 2018, Judge Driver found in favour of the applicant on the basis that the Authority had erred in its application of s 473DD(b) of the Act and remitted the matter back to the Authority: DHV16 v Minister for Immigration & Anor [2018] FCCA 349 (DHV16 judgment).

10. On 14 June 2018, a second, differently constituted Authority again affirmed the delegate’s decision not to grant the applicant a protection visa. On 5 July 2018, the applicant applied for judicial review of the second decision of the Authority. A second further Amended Application including Ground two was filed with the Court on 3 June 2025.

    THE AUTHORITY’S DECISION

11. The Authority noted that it had before it material given by the Secretary under s 473CB of the Act.

12. The Authority considered the various pieces of review material before it and identified the additional material in which it was satisfied that there were exceptional circumstances to justify considering. This comprised of:

    •  A DNA test report dated 30 September 2016

    •  Affidavit declared by the applicant’s mother dated 5 September 2016 attesting to the relationship between the applicant, his sister and other siblings and explaining that date of birth variations in the birth certificates are errors

    •  A birth certificate for the applicant’s brother

    •  Letter from Mrs JS, Attorney-at-law, dated 5 September 2016 attesting to knowing the applicant’s parents and their four children

    •  Statutory Declaration from the applicant dated 13 April 2018

    •  An Affidavit declared by the applicant’s sister dated 6 September 2016

    •  A copy of a letter from UK Visas & Immigration dated 26 March 2015 and advising the applicant’s sister she had been granted asylum in the UK

    •  An identity card issued to the applicant’s sister by the UK Border Agency

    •  Statutory Declaration from the applicant’s sister dated 10 April 2018

13. At [8], the Authority noted the following:

    The applicant’s claim that he has a sister who was an LTTE fighter and is now resident in the UK and who has appeared in the media publicising her rape by Sri Lankan army soldiers forms a significant part of his protection claim. At the SHEV interview the delegate noted his concerns about aspects of the applicant’s claims regarding this sister and made particular reference to the applicant’s failure to declare this sister (and a second sister) at his Arrival interview and the applicant’s lack of knowledge of how she came to be in the UK. In his decision the delegate noted discrepancies in the dates of birth for the applicant’s parents in the birth certificates for both the applicant and his sister and made adverse findings in this regard. Considered together with other concerns the delegate did not accept the sibling relationship between the applicant and his sister, or that the applicant was the brother of the woman appearing in the media broadcast clips.

14. Further at [8], the Authority was satisfied that there were exceptional circumstances to justify considering the new information. The Authority found that the new information directly addressed the delegate’s adverse credibility findings regarding the sibling relationship, and the DNA test in particular was of a highly relevant and probative nature. As such, the Authority was satisfied that the new information was credible personal information that was not previously known, and had it been known, may have affected the consideration of the applicant’s claims.

15. At [9], the Authority was also satisfied that there were exceptional circumstances to justify consideration of a Country Information Report on Sri Lanka released on 23 May 2018 by the Australian Department of Foreign Affairs and Trade (DFAT Report). This report postdated the delegate’s decision and contained more recent details on Sri Lankans who have departed Sri Lanka illegally and sought asylum while overseas.

16. The Authority accepted the applicant’s claimed identity and that Sri Lanka was the receiving country [11].

17. The IAA accepted that the applicant had cousins who were members of the LTTE, two of whom had been killed in battle [12].

18. At [13] – [14], upon reviewing the arrival interview audio, the Authority rejected the representative's explanation for omitting reference to his sisters, noting the applicant had not been reluctant in disclosing his own and his cousins’ LTTE links. The Authority found the evidence provided in support of the familial relationship to be highly unsatisfactory, but nonetheless, on the basis of the DNA test provided by the applicant, accepted that he had two sisters.

19. The Authority accepted that the applicant worked as a tax collector for the LTTE from 1991 to 1994 [15].

20. The Authority accepted the applicant, and his family were displaced in 1995 when the army took control of the area of Jaffna in which they lived [16].

21. At [17], the Authority accepted that the applicant returned to the Jaffna district in 1996 and soon after commenced working with the postal service. At that time, the area around Jaffna town was under government control, and the outlying areas were under LTTE control. The Authority further accepted that the applicant was delivering postal items between the two areas and came to the attention of the authorities in 1996.  He was detained for several hours by the authorities and questioned while detained.

22. The Authority accepted that the applicant was detained twice in early 1997. He retained visible scars from torture during those detentions [17] – [19].

23. The Authority identified inconsistencies in the applicant’s accounts regarding the timing of his detention and found his explanations unconvincing [20].

24. The Authority was not satisfied that the applicant was of interest to the authorities as he claimed, and did not accept that from 1997 the authorities had an interest in the applicant and regularly searched for him [21] – [26].

25. At [31], the Authority did not accept that one of the applicant's sisters was a LTTE fighter or involved with the LTTE, as it was concerned the applicant had not mentioned the claims at the arrival interview, that aspects of the claims lacked credibility, others were implausible and inconsistent with country information [28] – [30].

26. The Authority accepted that the applicant’s sister was sexually assaulted by the Sri Lankan army and subsequently granted asylum in the UK. However, it did not accept this was due to any imputed LTTE profile or adverse profile [32].

27. While accepting that the applicant’s sister publicised the rape in a BBC interview, the Authority found no reliable evidence that the Sri Lankan authorities pursued the applicant’s mother or older sister as a result [33]. Furthermore, the Authority noted that from his own account, the applicant’s mother had ignored two attempts to question her without any adverse consequences, which belied the applicant’s claim that the authorities have an interest in the family because of his sister’s media broadcast.

28. At [34], the Authority accepted that the applicant's brother left Sri Lanka to work in Doha, but did not accept that he had left to avoid harm because of the BBC interview.

29. At [35], the Authority rejected the claim that the applicant was of interest to the authorities after the initial questioning in 1997. It did not accept the applicant’s claim that they regularly sought to locate him, or that the authorities had an ongoing interest in the applicant and other family members because of his sister’s media broadcast. Further, the Authority did not accept the applicant’s claim that the authorities visited the family home in 2016 and enquired about him.

30. At [36], the Authority accepted that the applicant’s first wife became ill and that there was a delay in obtaining treatment for her and that the applicant was not able to accompany her or attend her funeral after her death. Whilst the Authority accepted that this would have been distressing for the applicant, the Authority found it did not indicate that the applicant was imputed with an adverse profile.

31. The Authority accepted that the applicant departed Sri Lanka illegally in 2012 and claimed asylum [37].

32. While accepting the applicant held safety concerns, in light of significant changes in country conditions since the end of the war, the Authority was not satisfied there was a real chance the applicant would experience harm upon return to Sri Lanka for reason of his Tamil ethnicity, his past involvement with the LTTE, and his familial links with LTTE fighters [40] – [41].

33. At [43] – [44], the Authority, having rejected that the applicant was of adverse interest to the authorities when he departed Sri Lanka in 2012, did not accept that he would be of adverse interest on return to Sri Lanka [43] – [44]. This included for reasons of the applicant himself and his familial involvement with the LTTE.

34. The Authority was not satisfied that the sister’s BBC interview exposed the applicant to a risk of harm, finding it unlikely he would be identified as the brother of the person who made these public statements. It also noted that there was no resultant adverse interest in his mother or sister [45]. The Authority was not satisfied that this would result in any harm to the applicant now or in the foreseeable future.

35. At [46], while accepting that the applicant had scars on his body, the Authority was not satisfied he would be targeted on that basis alone, considering the applicant did not have an adverse profile.

36. At [47], the Authority concluded that, overall, the applicant would not face harm upon return on the basis of Tamil ethnicity, past LTTE involvement, familial LTTE links, or his sister’s publication of her rape by army soldiers.

37. Although the Authority accepted that the applicant departed Sri Lanka illegally and sought asylum, it was not satisfied that any adverse treatment upon return would constitute serious harm [48] – [54].

38. At [56], the Authority noted that as the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, the applicant did not meet s 36(2)(a) of the Act.

39. The Authority went on to consider whether the applicant was a person whom Australia had protection obligations on the basis that there were substantial grounds for believing that, as a consequence of being removed from Australia, there was a real risk that he would suffer significant harm.

40. While accepting that the applicant would be identified as an illegal departee and asylum seeker, the Authority was not satisfied that any consequential treatment would rise to the level of significant harm [60] – [61].

41. As the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm, the Authority concluded that the applicant did not meet s 36(2)(aa) of the Act.

42. Consequently, the Authority affirmed the decision not to grant the referred applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

43. The applicant advances two grounds of judicial review contained in an Amended Application filed on 16 May 2025. They are as follows (less particulars):

    1.The IAA fell into jurisdictional error by acting unreasonably in failing to consider its discretion under s 473DC(3) to invite the applicant to comment at a hearing or in writing on the IAA finding that he would not be harmed because of the publication of the gang rape of his sister, because of his profile as a former LTTE tax collector and a person who was previously tortured by the authorities, and the finding that it was not satisfied that his sister was not a LTTE fighter or member.

    2.The IAA fell into jurisdictional error by failing to consider a surplice claim that arose squarely on the materials.

44. By means of a second Amended application, filed on 3 June 2025, the applicant provided an additional particular (viz. particular (g)) to ground one, which is as follows:

    g)The Authority misunderstood the Applicant's evidence about his sister's hair:

    i.The Applicant said at line 477 that he first saw his sister at his mom's house, thereby necessarily implying that it was after her release from the camp.

    ii.The Second Authority misunderstood him to have said that he had seen her in the camp

    iii.The Authority thereby misunderstood the timing and potential causality of her short hair.

    iv.The Authority misunderstood the implication of the hair issue in that, even if she did have short hair when she entered the camp (which is not established on the evidence), she nonetheless avoided rehabilitation.

    v.The causation of avoidance of rehabilitation was therefore an issue requiring inquiry.

    THE APPLICANT’S SUBMISSIONS

    Ground One

1. The applicant asserts it was legally unreasonable for the Authority not to invite him to provide information under s 473DC about his risk of harm with respect to the BBC interview, in which the applicant’s sister publicised that she had been gang raped by Sri Lankan soldiers: [27]–[32], and at [45]. The applicant referred to this assertion as “Integer One” to ground one.

2. The applicant also contends that the Authority’s acceptance of the fact that the applicant’s sister was gang raped by the military, gave rise to a requirement to inquire into the question of why this was done to her, specifically in the circumstances where it proposed to reject not only the applicant’s claim of why this occurred, but also to reject the applicability of country information which supported the claim. The applicant referred to this contention as “Integer Two” to ground one.

   Integer One

3. The Authority acted unreasonably in failing to consider exercising its discretion under s 473DC (3) of the Act to invite the applicant to comment on the findings in [27] – [32] and [45] at a hearing or in writing.

4. Despite accepting that country information indicated that rape victims in the north of Sri Lanka were primarily, actual or imputed, LTTE members [32], the Authority rejected that the applicant’s sister had been raped for that reason, solely on the basis that the applicant’s sister was not detained after the war, while in the camp or later. The fact that his sister was gang raped by the authorities itself was indicative of an imputed LTTE involvement or connection as the reason for it being inflicted on her. The Authority did not consider whether to invite submissions from the Applicant on this issue, which was not raised by the delegate.

5. The Authority was required to provide logical and probative reasoning if it sought to reject the reason claimed by the applicant, and the principal reason suggested by the country information, namely, imputed LTTE involvement: DBX16 v Minister for Immigration and Border Protection [2021] FCA 238. If the applicant’s sister was gang raped due to her involvement with the LTTE, this raised a risk of harm to the applicant. The applicant expresses that no reasonable Authority would have failed to consider inviting the applicant to provide further evidence about it.

6. The veracity of the claim about the applicant’s sister is further supported by the applicant, raised through his representative, that he was frightened to disclose his own and his sister’s involvement with the LTTE during the screening process in Australia, for fear of being screened out and deported to Sri Lanka.

7. It was incumbent on the Authority to consider inviting the applicant to make submissions about it under s 473DC of the Act, to invite the applicant to make submissions on the new issue of the reason for his sister’s gang rape, particularly as this was not raised by the Delegate and was material to the assessment of risk. The Authority’s failure to consider exercising this discretion, in circumstances where the issue was central and not previously addressed, constitutes jurisdictional error: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17)at [38]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82].

   Integer Two

8. The Authority erred in finding that the applicant was not at risk of harm as a result of the BBC interview, solely on the basis that his mother and other sister in Sri Lanka had not experienced harm. Given the applicant’s adverse profile, as an admitted LTTE tax collector, who was previously tortured by the Sri Lankan authorities because of his imputed LTTE profile, the Authority should have provided him with an opportunity to provide further information, because the Authority had accepted that his sister was "potentially identifiable" from the BBC interview, and accepted that he was therefore identifiable as her brother by the Sri Lankan Authorities. The Authority had also considered country information, which it found indicated that the Sri Lankan authorities were sensitive to international criticism.

9. The applicant also referenced CCQ17, where Thawley J said at [38]:

   There may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [80], [81]. In this regard, the appellant bears the onus of establishing:

   (1)    the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] (Hill, Sundberg and Stone JJ);

   (2)    that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J).

10. The Authority did not consider the exercise of the s 473DC power to invite the Applicant to give evidence about this “publicity” integer of his claims. This error was jurisdictional.

11. The Authority was obliged to consider inviting the applicant to provide information or argument about: (a) whether the Authority’s acceptance of his sister’s rape was indicative of an adverse profile due to an actual or imputed LTTE involvement or connection; and (b) how his own profile put him at a real risk of harm as a result of his sister’s public testimony. The applicant also extracted the closing submissions made by the applicant’s agent at the SHEV interview to summarise the applicant’s ‘cumulative personal profile’ to round out his written submissions regarding this particular.

12. In the closing submissions of the applicant’s SHEV interview, the applicant’s agent raised the applicant’s cumulative personal profile, with specific reference to his elder sister’s media attention, as giving rise to a Refugee Convention related real risk of harm. Objectively, the applicant’s cumulative profile was greater than and certainly different to that of his mother and younger sister. The applicant was entitled to have the issue put to him that his profile would be considered as no different to that of his mother or sister.

    Particular (g)

13. The applicant further submitted that the Authority misapprehended his evidence by finding that his sister had short hair when she entered an army camp, when the evidence only established that she had short hair upon release from the camp: [Transcript of Protection Interview Page 5, dot point 2]. This misapprehension was material to the adverse credibility finding and was not put to the Applicant for comment, thereby denying procedural fairness. The Authority’s failure to invite submissions on this critical point, which was not previously raised, further supports a finding of jurisdictional error.

14. As the Authority placed significant weight on its own misunderstanding, and the applicant had no way of knowing that the Authority would misunderstand his evidence in this way, there was a definite obligation to consider putting him on notice of the concern and inviting the Applicant to provide further information.

15. The Authority, at [29], impermissibly assumed, without asking, that the applicant’s sister had short hair at the time she entered the camp when there was no evidence of this. The Authority simply rejected as not possible that the applicant’s sister could have short hair in the camp or in Jaffna after release, without being detected in the sense of being sent for rehabilitation.  However, the Authority was not entitled to come to a finding that it was plausible that the applicant’s sister had short hair, or avoided detection at the level requiring being sent for rehabilitation. In particular, it was unreasonable to come to this finding regarding the plausibility of having short hair without being sent for rehabilitation, without considering inviting the applicant to provide further information about it.

    Ground Two

16. Ground two contends that the Authority failed to consider the judgment in the applicant’s prior application to the (then) Federal Circuit Court: DHV16 judgment, which he alleges constructively enabled the Sri Lankan Authorities to identify the applicant as the person assigned to the pseudonym DHV16, through his relationship with his sister. The applicant frames the ground as a failure to consider a sur place claim, and also a failure to invite the applicant to provide information regarding the DHV16 judgment.

17. As a result of being linked to his sister, who raised the rape evidence in the BBC media interview and other international media, the applicant is readily linkable to his first court judgement, which has been posted on websites such as and Jade, thereby exposing the applicant as the person with the pseudonym “DHV16”.

18. “This is not a long bow to draw”, as the 23 May 2018 DFAT report indicated that Sri Lankan authorities have a determined intelligence service which monitors, inter alia, the diaspora.

19. The applicant places reliance on the case of  SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 585 (SZTKE) at [44] – [46] to assert that the fact of the possibility of the Sri Lankan authorities monitoring judicial websites in Australia for information about those connected to the LTTE, and including potentially accessing the Applicant’s first court decision, was readily discernible to the Authority at the time it made its decision in June 2018.

20. Therefore, this is a claim that arises directly on the materials. It arises in direct consequence of the Authority’s acceptance of the familial relationship between the applicant and his sister.

21. There was an obligation to put to the applicant the issue of whether there was any risk of harm to him directly from the publication of the first Circuit Court’s decision.

22. The applicant referred to the case of WZAUP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 116 (WZAUP), wherein Rares J indicated that the publication of personal details and claims of an applicant in principle may expose an applicant to a risk of harm.

23. The risk of identification of court pseudonym, as a class of risk, is a digital phenomenon in the sense that personal identifiers other than names can identify a person, just as absolutely as a name can. It was submitted that once a person is identified, it is irrelevant whether it was through date of birth, name or identification as a sibling of a person who was in the international media.

24. Accordingly, the risk of identification through judicial publication was a real and foreseeable consequence, as recognised in SZTKE and WZAUP. The Authority was therefore obliged to consider this risk and to invite the Applicant to provide submissions on the issue, particularly as it arose from the Authority’s own findings and was not previously addressed by the Delegate. The failure to do so constitutes jurisdictional error.

25. The risk of harm arising from the Applicant’s identification as ‘DHV16’ is independent of whether his sister’s LTTE involvement is accepted; that is, the risk arises from the potential for identification through judicial publication.

    THE FIRST RESPONDENT’S SUBMISSIONS

    Ground One

26. The applicant’s contention that it was legally unreasonable for the Authority not to invite him to provide information under s 473DC of the Act about his risk of harm with respect to the BBC interview should have been put to the applicant, as the Authority’s diversion from the findings of the delegate does not assist the applicant. Reference was made to the Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16) at [76], where the Court found that the Authority is entitled to disagree with a delegate’s evaluation of the material without providing an applicant the opportunity to respond; in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 (FSG17) at [60], where the Full Court found the Authority does not have to invite an applicant to give new information simply because it comes to a different conclusion than that reached by a delegate. Relevantly, the Full Court in DGZ16 stated the following (at [74]):

    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

27. The circumstances in which the Authority will be held to have unreasonably failed to exercise its power under s 473DC of the Act to get new information requires a high threshold: Minister for Home Affairs v DUA16 (2020) 271 CLR 550 [26] – [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.

28. The first respondent then addressed each integer raised by the applicant in his written submissions, in turn.

    Integer One

29. The Authority was not required to invite the applicant to provide information, pursuant to 473DC of the Act, on any of the matters outlined in this particular.

30. The selection and weight to be afforded to country information forms part of the Authority's fact-finding function, so it was open to the Authority to find, based on its assessment of the country information and the applicant's evidence, that Y had been not been raped because of an association to the LTTE: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11] per Gray, Tamberlin and Lander JJ.

31. The Authority’s findings at [27] – [32] demonstrate that it did not diverge from the country information solely on the basis that the applicant’s sister was not detained after the war, while in the camp or later. Rather, it provided various findings, which, contrary to the applicant's contention, provided a "logical and probative" basis for its conclusion that the applicant’s sister had not been raped for the primary reason set out in the country information, namely, an association with the LTTE.

32. The applicant’s contention that the Authority should have concluded that the applicant's failure to mention he had a sister at the arrival interview was evidence of the veracity of the claim that his sister was a member of the LTTE is incapable of assisting the applicant's case. It was also open to the Authority to find that the applicant's omission weighed against the veracity of the claim. The Court cannot review the merits of the Tribunal’s decision: Wu Shan Liang (1996) 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ.

    Integer Two

33. This particular suffers from various deficiencies. The applicant has erroneously framed some of the Authorities’ findings, which form the basis of his allegation. The first respondent gave the following examples:

    (a)The Authority did not accept that the applicant was identifiable as the sister’s brother due to the BBC interview; rather, it considered it was "unlikely" he would be identified (CB 455 [45]);

    (b)The Authority’s finding that the applicant was not at risk of harm was not made solely on the basis that his mother and sister had not experienced harm as a result of the BBC interview. Rather, the Authority provided a suite of findings to conclude that the applicant would not be at risk. For example:

    (i)It did not accept that the applicant’s sister was raped on account of her association with the LTTE [32];

    (ii)It found the applicant’s claim that the authorities took an interest in his mother following a BBC interview to be implausible, and further determined that the authorities had shown no interest in the applicant’s elder sister  [33], [45];

    (iii)It rejected the claim that the applicant’s brother departed Sri Lanka due to the BBC interview [34];

    (iv)It did not accept that the applicant remained of interest to the authorities following his initial questioning in 1997, nor that the authorities made ongoing efforts to locate him or had a continuing interest in him or his family as a result of the BBC interview [35];

    (v)While acknowledging country information indicating sensitivity by Sri Lankan authorities to criticism regarding human rights abuses, the Authority concluded that the applicant would not face a risk of harm arising from the BBC interview, noting, among other things, that his mother and sister remained in Sri Lanka without incident [45]; and

    (vi)It found that even if the applicant could be identified as a relative of his sister, an assertion it considered unlikely, there was insufficient evidence to establish a risk of harm on that basis [45].

34. The first respondent also takes issue with the framing of the applicant’s allegation at AS [57]. The Authority provided cogent reasons in finding that the applicant’s sister was not an LTTE member, and, nonetheless, contrary to the applicant's submission at AS [46], provided "cogent or probative reasoning and evidence" in finding that the applicant was not at risk due to the BBC interview.

35. For the preceding reasons, the Authority was not required to invite the applicant to provide information, pursuant to s 473DC, on any of the matters outlined in this particular.

    Particular (g)

36. The first respondent submits that particular (g) is an allegation, in effect, that the Authority's finding at [29] was infected by an unwarranted assumption: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16). Unwarranted assumptions may establish that a finding is illogical, irrational or not founded on any probative evidence: DAO16 at [45]. Jurisdictional error may be exposed where the Tribunal applies a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

37. The applicant claims that the Authority’s finding that the applicant’s sister had short hair at the time she was brought into the camp was made "without any tangible evidence", however it is relevant to note that at [29], the Authority did not make a finding, as such, that the applicant's sister came to the camp with short hair; rather, the Authority was simply referring to the applicant's own statement regarding his sister's cropped hair. In light of that statement, the Authority proceeded to find that it was not credible that the sister would not be detected as an LTTE fighter. Irrespective, the Authority’s relevant findings demonstrate an active intellectual engagement with the claims and evidence: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [48]-[49].

38. For the following reasons, the Authority’s credibility finding at [29] was not predicated on an unwarranted assumption. First, it is apparent at [29] that what the Authority did not consider credible was that the applicant's sister would not be detected 'whilst in the camp' if she had short, cropped hair. This reasoning did not depend upon whether the applicant had cropped hair upon entry or release, but simply whether she had cropped hair "whilst in the camp".

39. Second, it is also apparent that the Authority did not accept the applicant's account regarding his sister having short, cropped hair. Rather, the Authority was addressing the claimed circumstance that the applicant's sister had short, cropped hair. The import of the Authority’s reasoning was that in that circumstance, it was not credible that she would not have been detected as an LTTE fighter. This was relevant to the broader claim that the Authority was responding to, which was a claim that, despite being an LTTE fighter, she avoided detection after the war. The Authority’s reasoning was to the effect that if this was true at all at the end of the war, it was not credible that the sister would not have been detected as an LTTE fighter.

1. Even in circumstances where the Authority’s consideration at [29] contained an erroneous factual finding (which is not conceded), such an error does not amount to an error of law: Waterford v Commonwealth [1987] HCA 25 at [77]. An erroneous factual finding would only be jurisdictional if it meant that the Authority had failed to consider an applicant's claims: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]. However, this is not alleged, or that the particular factual finding is shown to be irrational or illogical, which, as discussed, is not evident in the Authority’s finding at [29]: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 at [83]-[84].

2. Nor was the impugned misunderstanding crucial to the ultimate conclusion: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [37]; or material in the sense that there is a realistic basis to consider that the IAA's conclusion would have been different such that the Authority’s error (if there was one) was jurisdictional: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 per; Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]-[31].

3. For the preceding reasons, the Authority was not required to invite the applicant to provide information, pursuant to s 473DC, on any of the matters outlined in this particular.

   Ground Two

4. If there was a claim the Authority failed to consider, the applicant's representative before the Authority failed to identify it. Regardless, for the reasons that follow, the alleged errors in this ground cannot be established.

5. There is no dispute that the Authority should, in some circumstances, consider a sur place claim, but it is clear that the Authority did consider whether the applicant would be at risk of harm from the BBC interview: see [33], [35], [45], [57], [59]. This aspect of the applicant's contention does not assist the applicant.

6. The contention raised by the applicant that the Authority should have exercised its discretion under s 473DC of the Act with respect to the DHV16 judgment is misconceived. In relation to the applicant’s argument that it is not a "long bow to draw", the DHV16 judgment, which is publicly available, combined with the BBC interview, could expose the applicant's identity, as well as his adverse profile, to the Sri Lankan authorities. As to why this might be the case, the applicant argues that the 23 May 2018 DFAT report, which was before the Authority, indicated that the Sri Lankan authorities have a determined intelligence service which monitors, inter alia, the diaspora: AS [62].

7. This allegation relies on the false premise that the Authority accepted at [33] and [45] that the applicant’s sister was potentially identifiable in the media reports she appeared in, and accepted that the Applicant was therefore identifiable as her brother by the Sri Lankan Authorities: AS [59]. This is not the case.

8. Irrespective of whether the DHV16 judgment was before the Authority, the paragraphs cited by the applicant as potentially revealing his identity do no such thing, rather, they summarise the applicant's claims for protection and the new information he had provided to the Authority. Moreover, the information therein was, in fact, before the current Authority, was considered in the current Authority decision, and again, did not include personal identifiers. 

9. The applicant could not have been identified by the Sri Lankan authorities, for any of the reasons stated, and it follows that it was not unreasonable for the Authority not to exercise the discretion under s 473DC of the Act to invite further information on any of these matters.

   CONSIDERATION

10. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

11. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

12. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

13. It is well settled that the country information and the weight it gives to that information is a matter for the Authority: NAHI.

14. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

15. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the relevant decision maker to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 (Lat) at [76]. The Authority is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].

16. The review conducted by the Authority was pursuant to the now-repealed Part 7AA Fast Track Reviewable decision provisions. Relevantly, s 473DB(1) includes that the Authority must review a matter:

    (a)without accepting or requesting new information; and

    (b)without interviewing the referred applicant.

17. The Authority is not under a duty to get, request or accept any new information, whether the Authority is requested to do so by a referred applicant or by any other person: s 473DC. Where new information is accepted pursuant to s 473DD, particulars of that information must be put to the referred applicant and an invitation to comment where the new information would be the reason, or a part of the reason, for affirming a fast track review: s 473DE(1) (a) – (c).

18. At [6], the Authority set out the new information it had accepted that was provided by the applicant. The only other new information was an up-to-date DFAT Country Information report for Sri Lanka dated 23 May 2018. The delegate had relied upon a DFAT report dated 18 December 2015. The Court notes that there was no requirement to put the most recent country information report to the applicant for comment, as it is one of the exceptions set out in s 473DE(3).

19. Thus, if the applicant’s complaints are valid, the Authority made a jurisdictional error by not asking the applicant to comment on information he provided to the Authority. I do not accept this as a correct interpretation of the legislative intent of the sections quoted above. The only information that was required to be put to the applicant was new information obtained by the Authority, which may form the reason or part of the reason for affirming the review.

20. In supplemental submissions, the applicant submits that it was procedurally incumbent on a basis of procedural fairness, pursuant to s 473DC, on the Authority to raise with the applicant its concerns as to the overall information that was before it and, in particular, concerns that arose out of the new information. I do not accept this submission. This contention was rejected by the Court in FIV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 297 at [113] – [122].

21. The Authority was not required to put to the applicant issues that arose from the new information provided by him. Given the legislative constraints imposed in relation to procedural fairness and natural justice in s 473DA, there was nothing unreasonable in not seeking comment from the applicant. For this reason alone, the grounds of judicial review as expressed have no merit. Each alleges a failure under s 473DC to invite the applicant to comment on findings that flowed in part from the new information provided by him. Notwithstanding this view, it is appropriate to consider the grounds in some further detail.

22. It should be noted that the amended grounds and particulars, as expressed in their latest iteration, are less than clear as to precisely what jurisdictional error is alleged.

    Consideration: Ground One

23. Ground one is a complaint that the Authority acted unreasonably in not inviting the applicant to comment under s 473DC(3) on its finding that he would not be harmed because of the publication of the rape of his sister and the finding she was not an LTTE fighter.

24. The applicant complains that the Authority did not put findings at [27] – [32] and [45], which were at odds with the findings of the delegate. I accept the first respondent’s submission that the Authority is entitled to disagree with a delegate’s evaluation of the material without providing the applicant with the opportunity to respond: DGZ16 at [76],  FSG17 at [60].

25. The review by the Authority, while abridged, is a de novo review. As such, the Authority is entitled to take a different view on the evidence and make findings that may be different from the delegate. Unless those new findings are legally unreasonable, irrational or illogical, no jurisdictional error arises.

26. The particulars of ground one are somewhat confusing. Particulars (a) and (b) simply set out the differences between the Authority’s findings and the delegate’s. Particular (c) simply recites that the Authority found exceptional circumstances to admit the new information provided by the applicant.

27. Particulars (d), (da) and (e) suggest the Authority did not put its findings, which were at odds with the delegate, to the applicant for comment. While the particulars are couched in the term of unreasonableness, as in particular (f), as set out above, there was no requirement for the Authority to put its different findings from the delegate to the applicant for comment. The delegate found the applicant had no biological sisters. The new information provided by the applicant showed that he did.

28. Particular (g) takes issue with the factual findings of the Authority, claiming it misunderstood the evidence. In submissions, it was put by the applicant that there was no evidence that the applicant’s sister’s hair was short or a bob cut when she entered an Internally Displaced Persons (IDP) camp. Short hair worn by females was associated with being an LTTE fighter.

29. Rather, the evidence was that it was after she was released from the IDP Camp that her hair was short. Even assuming this was a factual error, I do not see it as material. It does not change the claim that the sister was raped by members of the Sri Lankan Army after she was released from the IDP. The basis upon which it is said the sister avoided being sent to a rehabilitation camp as a suspected LTTE member, to my mind, is irrelevant.

30. The Authority accepted that the applicant’s sister was raped. However, on the basis of country information, and the fact that the applicant’s mother and other sister apparently were not subject to ill treatment, a finding that the applicant would not be at risk if returned was open to the Authority, based on the evidence before it and for the reasons it gave.

31. Particular (da) suggests that the Authority should have asked the applicant for further information about his personal risk as a result of the publicity and media attention that occurred in the UK regarding the sister’s claim that she was raped. I am satisfied that [29] – [33] provides a logical and reasoned basis for the Authority to find that the applicant was not at risk due to the publicity surrounding his sister. If anything, this ground seeks to engage the Court in impermissible merits review. Ground one has no merit.

    Consideration: Ground Two

32. Ground two is a claim that the Authority failed to consider a sur place claim that arose squarely on the materials before the Authority. The particulars suggest that Sri Lankan authorities would be able to identify the applicant through the previously published decision of the Court in DHV16 per Driver J. It is alleged that through the relationship with his sister, being the brother of N, and the applicant having been a tax collector for the LTTE, the applicant was readily identifiable. The applicant further contends that it was unreasonable not to invite the applicant, pursuant to s 473DC, to provide further information.

33. For the same reasons as set out above, I do not consider that there was any obligation on the Authority to invite the applicant to provide further information pursuant to s 473DC. The only new information before the Tribunal was that provided by the applicant and a more up-to-date country information report. No obligation arose.

34. First, I accept this claim was never put to the Authority, and seems only to have arisen post the Authority’s adverse decision. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the tribunal to reach the requisite state of satisfaction: Lat at [76]. This assertion should have been put as part of the representations to the second Authority when the new information was provided.

35. However, I accept the submission of the first respondent that the Authority did consider this risk at various parts of the decision record, including [33], [35], [45] and [59]. The Authority clearly set out that the applicant’s sister was potentially identifiable, and not that she was able to be clearly identified. I do not accept that the impugned paragraphs, [74] and [83] of the 2018 Court judgement identify the applicant.

36. I do not accept that any obligation thus arose under s 473DC to invite the applicant to provide further information. Ground two has no merit.

    DETERMINATION

37. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       21 July 2025