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…
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Details
- AGLC
- DKR16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1594
- Case
- [2025] FedCFamC2G 1594
- Decision Date
CaseChat Overview and Summary
The case of DKR16 v Minister for Immigration and Multicultural Affairs involved an applicant who sought to challenge the decisions made by the Immigration Assessment Authority (IAA) regarding his claims for refugee status. The applicant, who had arrived in Australia and was subject to visa cancellation, argued that the IAA's conclusions were unreasonable, irrational, and illogical because they were based on discrepancies in his accounts, despite his claims of poor memory. The applicant contended that the IAA failed to properly consider the inconsistencies in his accounts, which were attributable to his memory issues, and instead wrongly found them to be fabrications.
The legal issues before the court were whether the IAA's conclusions were indeed unreasonable, irrational, and illogical, and whether the IAA had properly considered the applicant's claims of memory issues in assessing his credibility. Specifically, the court needed to determine if the IAA had erred in finding that the applicant fabricated certain aspects of his account regarding his past experiences in Sri Lanka and his reasons for leaving the country.
The court examined the evidence and submissions from both parties and considered the IAA's assessment of the applicant's claims. It was noted that the applicant had explicitly stated that his memory of certain dates and events was approximate due to memory problems. The court found that the IAA had not adequately considered the impact of the applicant's memory issues on the consistency of his account. Instead, the IAA had concluded that the discrepancies amounted to fabrications without sufficient justification. The court held that the IAA's failure to properly account for the applicant's memory issues resulted in a jurisdictional error, rendering its conclusions unreasonable.
As a result of the court's determination, the decision of the IAA was quashed, and the matter was remitted back to the IAA for reconsideration in light of the court's findings. The court ordered that the IAA must now properly consider the applicant's memory issues in assessing his credibility and the consistency of his claims.
The legal issues before the court were whether the IAA's conclusions were indeed unreasonable, irrational, and illogical, and whether the IAA had properly considered the applicant's claims of memory issues in assessing his credibility. Specifically, the court needed to determine if the IAA had erred in finding that the applicant fabricated certain aspects of his account regarding his past experiences in Sri Lanka and his reasons for leaving the country.
The court examined the evidence and submissions from both parties and considered the IAA's assessment of the applicant's claims. It was noted that the applicant had explicitly stated that his memory of certain dates and events was approximate due to memory problems. The court found that the IAA had not adequately considered the impact of the applicant's memory issues on the consistency of his account. Instead, the IAA had concluded that the discrepancies amounted to fabrications without sufficient justification. The court held that the IAA's failure to properly account for the applicant's memory issues resulted in a jurisdictional error, rendering its conclusions unreasonable.
As a result of the court's determination, the decision of the IAA was quashed, and the matter was remitted back to the IAA for reconsideration in light of the court's findings. The court ordered that the IAA must now properly consider the applicant's memory issues in assessing his credibility and the consistency of his claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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 toa.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.
Decision
Reasons for decision
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]).
Ratio Decidendi
Legal Principle Established
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