DKR16 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1594
•1 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKR16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1594
File number(s): SYG 1898 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 1 October 2025 Catchwords: MIGRATION – Whether conclusions of the Immigration Assessment Authority were unreasonable, irrational and illogical by reason of relying on discrepancies in applicant’s accounts in circumstances where he claimed poor memory Legislation: Migration Act 1958 (Cth) ss 36(2), 473CB Cases cited: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen (2023) 297 FCR 162 Division: General Federal Law Number of paragraphs: 61 Date of hearing: 14 October 2024, 17 February 2025 & 14 March 2025 Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: MinterEllison ORDERS
SYG 1898 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKR16
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
1 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application filed on 9 July 2018, as amended, 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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 June 2018 (Court Book (CB) 375). By its decision, the Authority affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (visa).
BACKGROUND
The following background and summary of the Tribunal’s decision is derived from the written submissions of the parties and the material available in the Court Book. Unless specifically indicated, it does not appear to be in dispute.
The applicant is a citizen of Sri Lanka.
On 20 October 2015, he applied for the visa (CB 135) in which he claimed to fear harm if returned to Sri Lanka on the basis of his Tamil ethnicity and a political opinion imputed to him in connection with the Liberation Tigers of Tamil Eelam (LTTE). The applicant’s claims more specifically included that:
(a)his uncle was an LTTE member and, as a consequence, he and members of his family had experienced adverse treatment from the Criminal Investigation Department (CID) (CB 10) of the Sri Lankan government (CB 90 to 91);
(b)his father was killed by the CID during the civil war, as well as another family member (CB 91);
(c)he was interrogated by the CID in 2005, resulting in him leaving Sri Lanka for Dubai in 2005 or 2006 (CB 92 to 93, 378);
(d)upon his return, the CID continued to search for him (CB 93); and
(e)in 2012, the CID attended his mother’s house asking questions about him.
On 5 August 2016, a delegate of the first respondent refused to grant the applicant the visa (CB 233). That decision was subsequently referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Act) on 8 August 2016 (CB 272 to 284). On 21 October 2016, the Authority made a decision affirming the decision of the delegate (first Authority decision) (CB 345 to 363). The applicant sought judicial review of the first Authority decision by an application to the (then) Federal Circuit Court of Australia (FCCA). On 23 April 2018, the FCCA made orders by consent quashing the first Authority decision and remitting the proceedings to the Authority for determination according to law.
On 22 June 2018, the Authority affirmed the decision under review (second Authority decision) (CB 375 to 391).
Second Authority decision
Information before the Authority
The Authority had regard to the material given to it by the Secretary under s 473CB of the Act. In respect of a submission from the applicant sent by email submission on 10 October 2016 (October submission), the Authority had regard to those aspects of it which had been raised before the delegate and, therefore, formed part of the referred material (CB 376 at [5]).
The Authority noted that a document dated 3 November 1997 was attached to the same email as covered by the October submission that document appeared to suggest that the applicant’s brother underwent rehabilitation (rehabilitation document). The rehabilitation document was not before the delegate and was, therefore, new information. However, the Authority was not satisfied that it could not have been provided to the delegate prior to that decision being made. Further, the Authority was not satisfied that the rehabilitation document was credible personal information. In all the circumstances, the Authority was not satisfied that there were exceptional circumstances to justify considering the rehabilitation document (CB 376 [6] to [8]).
The Authority acknowledged that, by the October submission, the applicant requested an interview with the Authority. The Authority was satisfied that the applicant had an opportunity to present his case and did not consider an interview was warranted (CB 377 at [9]).
The Authority obtained new information from a DFAT report dated 23 March 2018 about the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad (2018 DFAT report). The Authority noted that the delegate had relied on an antecedent version of the 2018 DFAT report and, given the time which had elapsed since the delegate’s decision, was satisfied that there were exceptional circumstances to justify considering the new information (CB 377 at [10]).
Protection claims
The Authority summarised the applicant’s claims for protection at [11] of its decision (CB 378).
The Authority accepted the applicant is a Tamil male from the Eastern Provence of Sri Lanka (CB 380 at [14]).
The Authority accepted the applicant’s consistent account that while his uncle was a member of the LTTE, it was also the applicant’s evidence that no other family members had been involved with the LTTE (CB 380 at [15]). The Authority therefore had concerns about the applicant’s claim that he, his father, brother and other members of his family had come to the attention of the Sri Lankan authorities, while they were searching for his uncle. The Authority was prepared to accept, based on country information, that the applicant’s father and his mother’s brother-in-law were killed in 1990 and 1991 (respectively) because of their familial links to the applicant’s uncle. The Authority was prepared to accept that the applicant’s brother was arrested and detained in or around 1994/1995, and that he had been treated for a psychological condition caused by his time in detention (CB 380 at [15] to [17]).
The Authority also accepted the applicant was briefly detained, interrogated and threatened by a Special Task Force in 1997 for the reasons he claimed, that he moved to a Trincomalee after his release, and that his mother and sister joined him in 2000. The Authority found the applicant’s evidence that he was a person of ongoing interest to the Sri Lankan authorities following his move to Trincomalee to be unconvincing (CB 380 at [18] to [19]).
The Authority outlined inconsistencies in the applicant’s evidence about when he worked as a taxi driver, noting this to be central to his claim that he was a person of adverse interest to the CID prior to, and following, his return from Dubai. It also noted inconsistencies about the period of time in which the applicant was in Dubai and as to for how long he was detained on his return to Sri Lanka (CB 380 at [20] and 381 at [25]). The Authority considered the evidence cumulatively, and concluded that the applicant was not recalling a genuine personal experience in relation to the events that allegedly led to his decision to leave Sri Lanka (CB 381 at [26]).
Further, the Authority did not accept the applicant had been pursued by the Sri Lankan authorities following his move to Trincomalee (CB 382 at [26]). It was not satisfied that the applicant was a person of adverse interest to the authorities by reason of his work as a taxi driver, or due to a perception that he transported weapons for the LTTE. Accordingly, the Authority rejected the applicant’s claim (first raised in his SHEV interview) that following his departure from Sri Lanka, the authorities attended his house in search of him. It concluded that the applicant fabricated those claims to enhance his application for protection. The Authority was also not satisfied that the applicant was an ongoing person of interest to the CID, or any other arm of the Sri Lankan government in connection with his uncle, or for any other reason (CB 382 at [26]).
While the Authority accepted that the applicant may be at some risk of encountering a degree of societal discrimination based on his ethnicity regarding the materials before it (including the 2018 DFAT report), it was not satisfied that this would constitute serious harm (CB 382 at [27]). By reference to country information, the Authority was also not satisfied that the applicant faced a real chance of serious harm due to his Tamil ethnicity, his former residence in the east of Sri Lanka, or any actual or imputed LTTE profile (at the time of its decision or in the reasonably foreseeable future) (CB 338 at [31] to [32]).
In relation to the applicant’s illegal departure from Sri Lanka, the Authority was not satisfied there was a real chance he would be harmed by the Sri Lankan authorities because he was a failed asylum seeker (CB [33] to [37]). The Authority accepted that the applicant would be taken to have committed an offence under the Immigrants and Emigrants Act (IEA) for departing Sri Lanka illegally and that, on return, he would likely be charged and fined and released. The Authority found there not to be a real chance that the applicant would face imprisonment on his return to Sri Lanka (CB 385 at [38] to [41]), and was satisfied that the IEA is a law of general application, and that its application to the applicant would not constitute persecution for the purposes of the Act (CB 385 at [42]).
The Authority ultimately concluded that the applicant did not satisfy s 36(2)(a) of the Act (CB 385 at [44]) and that there was not a real risk that he would suffer serious harm if returned to Sri Lanka. Accordingly, the Authority found that the applicant did not meet the requirements of s 36(2)(aa) of the Act (CB 387 at [52]).
The Authority affirmed the decision under review (CB 387).
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed on 9 July 2018 seeking judicial review of the second Authority decision (originating application). At the commencement of the instant proceedings, the applicant was unrepresented. For reasons which will become relevant below, the originating application drafted by him correctly identified that the migration decision the subject of review in this case was the second Authority decision.
On 30 July 2018, a Registrar made orders, by consent, which granted an opportunity to the applicant to amend his application by 22 October 2018, and listed the proceedings for callover (July 2018 orders). On 29 October 2018, the applicant filed a proposed amended application, outside the time allowed by the July 2018 orders. On 18 June 2019, the same Registrar made orders, again by consent including that the matter be stood over either for callover before a Registrar, or listed for final hearing before a Judge of the Court (first primary Judge), on a date to be administratively advised to the parties. The proceedings were later placed in the central migration docket.
On 25 June 2024, the parties appeared before a Registrar (by telephone) for callover. On that occasion, the first respondent was represented by his solicitor, and the applicant was represented by his current Counsel. Orders were made by the Registrar listing the proceedings for final hearing on a date to be fixed. On 1 July 2024, a Notice of Address for Service was filed for the applicant, which indicated that he was represented by a solicitor. On 9 August 2024, an outline of written submissions and list of authorities was filed for the applicant. The following day, a proposed Further Amended Application was filed.
On 30 August 2024, the proceedings were docketed to me, and I made orders listing them for hearing on 14 October 2024 (August 2024 orders). By the August 2024 orders the applicant was granted a further opportunity to amend his application by 30 September 2024, and the applicant and first respondent were ordered to file written submissions 14 and 7 days before the hearing (respectively). Written submissions were filed for the first respondent on 8 October 2025. No submissions were filed for the applicant in compliance with the August 2024 orders.
On 14 October 2024, the parties appeared before me for hearing, each represented by their respective Counsel. At the commencement of the hearing, Counsel for the applicant informed the Court that there appeared to be a “fundamental issue with this case” and said he was not ready to proceed. The basis for this was that Counsel had been given the Court Book from the FCCA proceedings referred to at [5] above, in which the applicant sought judicial review of the first Authority decision. Counsel informed the Court that he had therefore drafted the grounds of review in the proposed Further Amended Application by reference to the first Authority decision. This was despite the fact that the Court Book bore an entirely different proceeding number and that the decision itself was dated some 2 years earlier. Counsel indicated that it was not until the applicant’s representatives had received the written submissions of the first respondent that the mistake had been identified. Counsel also made a submission, based on instructions, that the applicant had never received the Court Book in the instant proceedings.
Counsel for the first respondent conveyed his instructions that the Court Book filed in the present proceedings had been served electronically by provision to the applicant of a link sent by email. Counsel for the first respondent sought the opportunity to make further inquiries to confirm whether the document linked to the Court Book from the FCCA proceedings, or to that filed in the instant proceedings.
The applicant sought an adjournment which the first respondent did not oppose. Given that there was no clear answer at that time as to by whom any costs thrown away might properly be borne, the Court made (inter alia) the following orders (October 2024 orders):
2. The final hearing is adjourned before Judge Given to 10:15am on 17 February 2025.
3. The question of costs thrown away occasioned by:
a. the adjournment referred to in order 2 above; and
b. any amendment referred to in order 5(a) below;
is reserved and is to be addressed by the parties at final hearing.
4. The first respondent must serve a hard copy of the Court Book filed in these proceedings on 27 August 2018 (Court Book) by 5:00pm on 21 October 2024.
5. The applicant must file the following documents by 4:00pm on 18 November 2024:
a. any further amended application giving complete particulars of each ground of review relied upon; and
b. any further Affidavit evidence, including in relation to the issue of costs
referred to in order 3 above.
6. The first respondent must file and serve any further Affidavit evidence to be relied upon including in relation to the issue of costs referred to in order 3 above, by 4:00pm on 16 December 2024.
7. The applicant must file and serve a written outline of submissions and list of authorities 14 days before the final hearing referred to in order 2 above, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
8. The first respondent must file and serve a written outline of submissions and list of authorities 7 days before the final hearing referred to in order 2 above, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
On 30 October 2024, a Second Further Amended Application was filed for the applicant (within the time allowed by the October 2024 orders), raising two new grounds of review.
On 13 January 2025, a proposed third Further Amended Application was filed for the applicant, which sought to abandon the grounds raised by the Second Further Amended Application, and instead, to raise one, particularised ground of review. On the same day, a further written outline of submissions (together with a list of authorities) was filed for the applicant. The first respondent filed written submissions on 10 February 2025, together with a list of authorities, as required by the October 2024 orders.
On 17 February 2025, the parties appeared before me for hearing, again represented by their respective Counsel. At hearing, I granted leave to the applicant to rely upon the Third Further Amended Application. At the conclusion of that hearing, I made orders reserving the question of costs thrown away by the applicant’s third further amendment, and adjourning the proceedings to 7 March 2024 for directions in relation thereto. Subsequent to that directions hearing, the parties reached a consent position in respect of a number of the reserved costs orders. On 24 March 2025, I made the following orders (in Chambers) by consent:
1. The applicant must pay the first respondent's costs and disbursements thrown away, occasioned by:
(a) the abandonment of the applicant's amended application filed on 10 August 2024;
(b) the adjournment of the final hearing on 14 October 2024; and
(c) the abandonment of ground 2 the amended application filed on 30 October 2024;
fixed in the amount of $9,485.33.
Evidence
In respect of the evidence before the Court, the applicant’s Affidavit made on 17 November 2024 (applicant’s Affidavit) was read without objection.
The respondent read the Affidavit of Jonathan Aaron Djasmeini (Djasmeini Affidavit), affirmed on 1 November 2024, also without objection.
The Court Book was tendered by the first respondent and received as Exhibit “1R”.
Oral submissions were made by the parties’ respective Counsel.
Ground of review
The ground of review raised by the Third Further Amended Application is as follows (as in original):
The IAA erred when it concluded the Applicant was not recalling a genuine personal experience in relation to the events that he claims led to his decision to leave Sri Lanka, and when it was not satisfied that, in 2018, the applicant is a person of ongoing interest to the CID, or any other arm of the Sri Lankan government in connection with his uncle or for any other reason, such that the conclusion and findings were unreasonable irrational and illogical.
Particulars
i.Paragraph 26 [CB382]
ii.In coming to that conclusion, the IAA considered a number of claims at paragraphs 20-26 [CB380]-[CB382] and concluded the applicant was not recalling a genuine personal experience in relation to the vents that he claims led to his decision to leave Sri Lanka, and that he fabricated these claims at paragraph 26 [CB382]
iii.The claims related to
a.When he worked as a three wheeler taxi driver (paragraph 20-21);
b.How long he was in Dubai (paragraph 20)
c.How long he was detained upon return from Dubai (paragraph 22);
d.What occurred when the CID accused him of hiding weapons (paragraph 22);
e.Where he visited after 2007-2012 (paragraph 23);
f.A letter from a catholic priest dated 21 December 2012 (paragraphs 24-25);
iv.The Applicant explicitly declared he had problems with his memory and that the dates were approximate to the best of his memory (Paragraph 11 [CB378]);
v.The asserted fabrications all involved variations with respect to dates, events or places which were all explicable on the basis of his poor memory or were otherwise without a valid basis.
vi.The IAA did not properly consider various inconsistencies (paragraphs 20-26 [CB380]-[CB381]) resulted from problems with his memory and instead incorrectly found they amounted to fabrications.
vii.Accordingly, the IAA committed jurisdictional error.
As was acknowledged at hearing before me, the point raised by the Third Further Amended Application is a relatively narrow one which takes issue with the Authority’s finding at [26] (CB 381 to 382) of its decision. It is sensible therefore to set that paragraph of the decision out in full:
When considered cumulatively, the above evidence leads me to conclude that the applicant was not recalling a genuine personal experience in relation to the events that he claims led to his decision to leave Sri Lanka. As noted above, there were inconsistencies in his evidence as to when he worked as a taxi driver, which is central to his claim that he was a person of adverse interest to the CID both prior to and following his return from Dubai. There were also inconsistencies as to how long the applicant remained in Dubai, and in respect of how long he was detained initially on return to Sri Lanka. While the applicant claims to have been in hiding between 2007 and 2012, this does not appear to be supported by his other evidence that he was working and living predominantly in Trincomalee during this period. I find the letter from the catholic priest not supportive of the applicant’s claims that he was in Dubai until July 2007, or that he was a person of adverse interest to the CID, or any other arm of the Sri Lankan government, from 2007 until 2012. I also find the applicant’s evidence in the entry interview that he was detained in a round up and released by the police in around June 2012 not supportive of his claim that he was a person of adverse interested to the Sri Lankan authorities in 2012 on account of imputed LTTE links, or for hiding or transporting LTTE weapons. For these reasons, I do not accept that the applicant was pursued by the Sri Lankan authorities following his move from Batticaloa to Trincomalee in 1997. I am not satisfied that the applicant is a person of adverse interest to the authorities in connection with his work as a taxi driver, or due to a perception that he transported or hid weapons for the LTTE. It follows that I reject the applicant’s claim, first raised in the SHEV interview, that following his departure from Sri Lanka the authorities came to his house in search of him. I conclude that the applicant fabricated these claims to enhance his application for protection. While I accept that the applicant and his family members previously came to the adverse attention of the Sri Lankan authorities on account of his uncle’s LTTE involvement, I am not satisfied that, in 2018, the applicant is a person of ongoing interest to the CID, or any other arm of the Sri Lankan government, in connection with his uncle, or for any other reason.
The applicant says that, notwithstanding his express declaration of having poor memory and “not being very good with dates” (CB 90 at [9]), the Authority undertook a forensic examination of his various claims at [20] to [26] of its decision (CB 380 to 381). By his written submissions to the Court, the applicant now identifies a series of “criticisms” made by the Authority in respect of inconsistent accounts in his evidence and, essentially, argues that when assessing his claims and making the aforementioned criticisms, the Authority should have had the caveat (that the applicant claimed to have a poor memory) at the forefront of its mind.
The first aspect of the Authority’s reasons at which the applicant takes aim are inconsistencies in his evidence as to when he worked as a taxi driver. The Authority identified certain inconsistencies in the manner in which the applicant’s claims in that regard had evolved over time. The applicant says that the accounts varied only “slightly” from the chronology of employment that he had provided as an attachment to his visa application (CB 174 to CB 175). The first respondent refutes that characterisation and contends that the discrepancies were important because the applicant claimed to have attracted adverse attention from the CID while transporting LTTE members in his taxi.
I agree that the applicant’s description of the accounts varying only “slightly” is a generous one. I am satisfied that the Authority’s finding about these inconsistencies was open to it. Beyond that, that the applicant seeking to marginalise the import of the inconsistencies, is no more than a disagreement with the findings, and an impermissible attempt at merits review.
In making the finding in question the Authority referred to:
(a)the applicant’s claim in his visa application that he worked as a three-wheeler taxi driver from 1998 to 2006;
(b)contrasting evidence which suggested he did not purchase his taxi until 2010; and
(c)the applicant’s evidence at the entry interview that he worked as a taxi driver between 2010 and 2012 and that until 2008 he had worked in construction.
That another decision maker might have considered those accounts and discrepancies to be slight, is also not to the point. Provided they were open to the Authority, the fact that the applicant wanted the Authority to reason otherwise, or that another decision-maker might have, is not indicative of error, much less does it render the Authority’s conclusion and finding in that regard (or cumulatively) unreasonable, irrational and illogical.
Next, the applicant points to the Authority’s discussion of evidence at the entry interview that the applicant was in Dubai from 2006 to 2008 (CB 20). Again the applicant says this varied “slightly” from the chronology of employment that he had provided as an attachment to his visa application (CB 174 to CB 175).
The first respondent says that reference by the Authority at [26] to inconsistencies about how long the applicant remained in Dubai, and in respect of how long he was detained initially on return to Sri Lanka, were based on its anterior findings at [21] where it set out differences in his evidence between the SHEV application, the SHEV interview and the entry interview as to how he came to be in Dubai. For example, at the entry interview the applicant claimed he had been in Dubai for two years. However, at the SHEV interview, he claimed it was one year.
The applicant now seeks to downplay those inconsistencies. However, the Authority was not merely ‘nit-picking’. It was open to it to find the discrepancy to be a matter of moment. In this regard, I repeat the findings at [41] above.
Next, the applicant refers to findings by the Authority which he says it recounted as being that he left for Dubai:[1]
for safety because the army were shooting everyone, whereas he advised the delegate in the SHEV interview it was because the CID were harassing him about weapons.
[1] Applicant’s written submissions filed 13 January 2025 at [6(iii)]
The applicant says that, contrary to the Authority’s findings, he gave an account that was “quite consistent with both explanations in his Statement at paras 23-24 [CB92]-[CB93]”.[2]
[2] Ibid
The first respondent says it is not enough to point to the applicant having said both of those things, as meaning his account was consistent. The first respondent says that this submission misconstrues the point the Authority was making which was that on different occasions the applicant did not give a full account. The first respondent says that it was not until the SHEV statement when the applicant combined the explanations having previously relied only on a singular basis as being his reason for leaving. Accordingly, the first respondent says that the final two sentences of [20] were in fact different. I agree that it was open to the Authority to reason in the manner that it did based on the material before it (see [41] above).
Next, the applicant relies on the finding by the Authority at [21] of the decision that his evidence about when he went to Dubai and returned was differed, and says that the variations were “minor” and accorded with his declaration.[3]
[3] Applicant’s written submissions filed 13 January 2025 at [6(iv)]
As the first respondent correctly observes, at [21], the Authority was referring to the applicant’s visa application (made on 20 October 2015) (CB 193) in which it was recorded he travelled to Dubai from 2006 until July 2007, which is a reasonably specific period. However, in the SHEV interview the applicant said he could not remember the year he travelled and told the delegate that he had remained in Dubai for one year.
I am satisfied that the statement at the SHEV interview exposed a difference. The SHEV interview took place on 1 March 2016, being only about 4 months later than the visa application was made. It was open to the Authority to have regard to the discrepancy. Again, see again [41] above.
Turning then to the applicant’s next point, being the assessment of evidence about events after the applicant returned from Dubai. The applicant refers to[4]:
one account that he was beaten and had a gun put to his head then taken to a friend’s house to look for weapons, with the other account (entry interview) that he was arrested and held for 5 days. [CB381]. However it is clear these were separate incidents, including being arrested and held for 5 days [CB32], detained 2-3 days [CB32], arrested with a gun put to his head para 25 [CB93], and arrested again with a gun put to his head para 26 [CB93]. The Applicant stated he was “captured” several times [CB32]. Accordingly the criticisms are invalid.
[4] Applicant’s written submissions filed 13 January 2025 at [6(iii)]
The first respondent says it is clear from [22] of the Authority’s reasons that it was dealing with (what it understood to be) the applicant’s account of one particular interrogation, said to have occurred after the applicant return from Dubai. The applicant, in his visa application described the incident as follows (CB 93 at [25]) (anonymisation added):
Two months after I came back from Dubai, while I was having my hair cut in a salon, the CID came and forcibly took me into a van. They stopped the van by the roadside and questioned me. They told me that there was an LTTE camp in front of my house and some weapons have been entrusted to me, so I should given them those weapons. They held a gun to my head while they told me this. They hit me in the head with their hands. I told them I didn’t know what they were talking about and they took me to my friend’s house. There, they dug up the ground to see if I had any hidden weapons. A man named [NAME] was interrogating me and eventually determined that I was clean and said that I could be released. He told me that if anyone from the CID comes and tries to interrogate me again, I should mention his name. He also gave me his phone number.
As the first respondent correctly observes, in the account at [25] of the decision, there is no reference to the applicant having been detained for days, much less is there a reference to five days. There is, however, a claimed assault. The applicant made reference to being interrogated but then it being decided he could be released, which discrepancy the Authority noted. A fair reading of [22] of the Authority’s reasons does not reveal any mistake on its part as to the applicant’s claims. To the extent that the Authority considered there to be discrepancies, that conclusion was open to it.
Next the applicant says that, at [23], while the Authority criticised his account about his whereabouts between 2007 to 2012, his evidence shows “no inconsistency and highlights his poor memory”.
In respect of this particular to the ground, the first respondent observes that the applicant claimed to have been in hiding between 2007 and 2012, despite also claiming that he had worked and lived in Trincomalee during the same period. As has already been addressed above, the applicant claimed to have been a taxi driver and also a construction worker in that time, and the Authority noted he renewed his driver’s licence in July 2010 with an address in Trincomalee.
This aspect of the ground seeks to suggest that the evidence demonstrates his poor memory. However, I am satisfied that it was open to the Authority to construe the matters set out in [23] of the decision, simply as discrepancies. By a submission which the first respondent makes in response to ground 1 in its entirety, he says that none of the Authority’s conclusions which the applicant seeks to impugn lacked an evident and intelligible justification, and that they must be read in context with anterior findings (at [20] to [25] of the Authority’s decision). Further, the first respondent submits that, simply because the applicant claimed the dates he provided were approximations because of his alleged memory difficulties, does not function to “immunise” his claims from any scrutiny. The first respondent says that identification of the aforementioned inconsistencies was neither illogical nor unreasonable, even when viewed in light of the applicant’s claimed memory problems. I accept that submission in respect of paragraph [23] specifically, and the Authority’s reasons as a whole.
The final aspect of the Authority’s reasons with which the applicant takes issue in support of the ground of review, is the finding in relation to the letter from the priest. The Authority found that letter did not support the applicant’s claims to have been in Dubai until July 2007, nor to have been a person of interest from 2007 to 2012. As the first respondent correctly observes, the letter from the priest said the applicant was attacked several times by an “unknown armed group” between 2006 and 2009. This contrasted with the applicant’s claim in his SHEV application that he travelled to Dubai from 2006 to July 2007, even if the applicant had not himself identified the alleged assailants. I am satisfied in this regard that the Authority’s findings at [26] were open to it.
It is well established that in order to demonstrate error of the kind the applicant now alleges in the instant case, the threshold is a high one. In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen (2023) 297 FCR 162 at [81], Mortimer CJ identified the nature of an error which can constitute legal unreasonableness as follows:
To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Ministerfor Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and BorderProtection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.
The applicant has not reached the requisite bar to establish the error alleged. In the present case I am not satisfied that the applicant has established the error alleged either in respect of any of the individual findings at which he takes aim, nor those findings cumulatively.
CONCLUSION
There being no jurisdictional error, the decision of the Authority is a privative clause decision and the application, as amended, must be dismissed. I will so order.
I will hear the parties as to costs in addition to the order made on 24 March 2025, referred to at [30] above.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 October 2025
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