DMH17 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 1488
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMH17 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1488
File number(s): SYG 2450 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 10 September 2025 Catchwords: MIGRATION – Whether it can be inferred from lack of reference to letters in reasons of Immigration Assessment Authority that the documents were overlooked – whether failure to consider claim squarely raised on materials Legislation: Migration Act 1958 (Cth) ss 472 CB, 473DA, 477 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 12
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: General Federal Law Number of paragraphs: 42 Date of hearing: 6 May 2025 Place: Sydney Solicitor for the Applicant: Mr D Moya, Moya Migration Law Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Clayton Utz ORDERS
SYG 2450 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMH17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The Affidavit of Kym Fraser made on 5 May 2025 must be filed by the solicitors for the first respondent by 4:00pm on 11 September 2025.
3.The application filed on 2 August 2017, 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 filed on 2 August 2017, by which the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) affirming a decision of a delegate of the first respondent (delegate) not to grant the applicant a Safe Haven Enterprise visa (visa).
BACKGROUND
On 13 November 2024, the Court delivered reasons for judgment in an interlocutory application in these proceedings, seeking reinstatement after their dismissal in the circumstances discussed at [3] below: DMH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1194 (interlocutory judgment).
The factual and procedural background to these proceedings is sufficiently set out at [3] to [22] of the interlocutory judgment and it is sensible to reproduce them here to adopt the defined terms in those reasons, for the purpose of this judgment also:
3.The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
4.The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith who arrived in Australia on 21 October 2012, as an unauthorised maritime arrival (CB 39 and 44).
5.On 2 February 2016, the applicant applied for the visa (Court Book (CB) 22 to 108). The applicant claimed to fear harm as a Tamil from Sri Lanka who was involved with the Eelevar Democratic Front (Popular Front EROS) (EROS), and that he had faced previous harm from unknown Tamil paramilitary groups.
6.A delegate of the Minister interviewed the applicant on 2 May 2016, before making a decision on 13 October 2016 to refuse to grant the applicant the visa (CB 170 to 186). The delegate’s decision was referred to the Authority for review on 19 October 2016 (CB 187 to 188).
The Authority’s decision
7.The Authority said that in making the decision it had taken into account the DFAT country report on Sri Lanka dated 24 January 2017, which post-dated the delegate's decision (CB 191 at [5]).
8.The Authority did not accept as credible the applicant's claims regarding his political opinion and activities, for reasons including that the applicant:
a.claimed that his brother's father-in-law (Mr X) asked the applicant to campaign for him, but that Mr X had not faced any difficulties due to his work. The Authority took the view that the absence of harm to Mr X undermined the applicant's claims to fear harm because of his pro-EROS political opinion (CB 193 at [12]);
b.gave inconsistent evidence about when he became a member of EROS, the identity of the people who allegedly targeted him, why he was targeted and what occurred the night he was threatened (CB 193 at [13] to [14]); and
c.raised a new claim at the end of the SHEV interview that he was involved in a petrol-bombing. The Authority considered a petrol-bombing to be a memorable event and accordingly, not one which the applicant would genuinely have forgotten to raise earlier (CB 194 at [15]).
9.The Authority was willing to accept that the applicant had been harassed and assaulted in the past by Sri Lankan security forces, as part of general security operations. Referring to country information which indicated that the overall situation for Tamils has improved since the end of civil conflict in 2009, and noting that the applicant did not claim that he or his family had any links to the LTTE, the Authority was not satisfied that the applicant has a profile which would bring him to the attention of the Sri Lankan authorities as someone connected to the LTTE (CB 195 at [22] to [23]).
10.The Authority found that, if returned to Sri Lanka, the applicant would likely be fined under the Sri Lankan “Immigrants and Emigrants Act” and might, as a result, be briefly detained in poor conditions. However, the Authority found that such treatment would be pursuant to a non-discriminatory law of general application and did not rise to serious or significant harm. In coming to this conclusion, the Authority relied on a finding that any harm would not be intended by the authorities (CB 195 at [41]).
APPLICATION TO THIS COURT
11.As noted above, these proceedings were commenced by the filing of the EOT application. At the time the EOT application was filed, the applicant appeared to be unrepresented, albeit the footer to the application form indicates that the application itself was prepared by a third party. By the EOT application the applicant provided a postal address in New South Wales and a particular Gmail address as being his email address for service (first Gmail address).
Procedural history
12.The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 15 September 2017, the applicant appeared before the first primary Judge for directions, on which occasion the Court made orders for the preparation of the hearing of the EOT application for hearing. The applicant was granted leave to file any amended application by 27 October 2017 with the proceedings listed for callover before the first primary Judge on 16 March 2018.
13.On 12 March 2018, the first primary Judge vacated the callover fixture and stood the matter over generally to be further called-over, or given a hearing date in due course. The proceedings were later transferred to the central migration docket.
14.On 16 March 2018, the applicant filed a Notice of Address for Service (2018 NOAS) which provided a postal address in South Australia and a different Gmail address as being the applicant’s email address for service (second Gmail address).
15.On 22 December 2021, the proceedings were docketed to me and a Registrar of the Court made orders listing them for hearing of the EOT application on time on 28 April 2022, together with ancillary orders for the preparation of that application for hearing (2022 Orders). The 2022 Orders, together with a listing notice with details of the hearing date and time, were sent to the parties by the Registry on 19 January 2022. To the applicant, those documents were sent both by post to the applicant’s South Australian address and email to the second Gmail address, by reference to the 2018 NOAS. The parties were advised by the listing notice that the mode and location of hearing would be notified to them closer to the date of hearing. This was because, following the COVID-19 pandemic restrictions, many hearings were still being facilitated online. Ultimately, because the applicant appeared to be located in South Australia, and the Court would be presiding from Sydney, the Court determined that the best method of hearing would be online, using Microsoft Teams (MS Teams).
16.On 27 April 2022, my Associate sent the parties the link to the MS Teams hearing for use the next day. While initially that email was sent by email to the first Gmail address, the error was rapidly identified and the MS Teams link was re-sent a very short time later, to the second Gmail address.
17.On 28 April 2022, the applicant failed to attend the hearing. An interpreter in the Tamil language was present in the MS Teams forum throughout. Counsel who appeared for the first respondent on that occasion sought orders for the dismissal of the proceedings for want of appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 (Cth) (Rules), and an order for costs.
18.Being satisfied that the applicant had been properly made aware of the time, date and mode of hearing by both the Court and the first respondent, and that the solicitor for the first respondent had also foreshadowed the applicant of the consequences should he fail to attend, the Court acceded to the first respondent’s application and made the following orders:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application for an extension of time filed on 2 August 2017 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”).
3. The first must respondent serve:
a. a sealed copy of these orders; and
b. a copy of rule 17.05 of the Rules;
on the applicant by close of business on 29 April 2022.
4. The applicant pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the amount of $3,737.
REINSTATEMENT APPLICATION
19.On 16 August 2023, the reinstatement application was filed for the applicant by his current solicitors. By the reinstatement application, the applicant seeks orders that the Court set aside or vary the orders referred to in the preceding paragraph (presumably pursuant to r 17.05(2)(a) of the Rules). Curiously, an additional order sought to dispense with r 15.14(3)(b) of the Rules, which rule pertains to the requirement for a non-English speaking jurat to be used for persons who do not have an adequate command of the English language.
20.The reinstatement application was initially listed for hearing on 20 March 2024, with orders made for the filing of submissions in advance of that date. That hearing event was facilitated by MS Teams, this time because the applicant’s legal representatives were located in South Australia and the Court was again presiding from Sydney.
21.At the first hearing of the reinstatement application each of the parties was represented by their respective Counsel. The first hearing of the reinstatement application adjourned in circumstances where there appeared to be anomalies in the dates on which various Affidavits had been executed. It is not necessary to detail those matters because, after further evidence was filed and enquiries made of the Registry by the Court, I am satisfied the anomalies were adequately explained and do not otherwise affect the matters which the Court must resolve in determining the reinstatement application.
22.On 17 May 2024, the hearing of the reinstatement application proceeded to finality. Each party was again represented by their respective Counsel who, in addition to having prepared written submissions in advance of the hearing, made further submissions at hearing. I have been assisted by all the submissions made for the parties.
Upon delivery of the interlocutory judgment the Court made the following, self-executing procedural timetable (emphasis in original):
4.Leave is granted to the applicant to file an amended application for extension of time raising (at least) the proposed grounds of review set out in paragraph [31] of the written submissions filed for the applicant on 21 September 2023, by 4:00pm on 4 December 2024.
5.The applicant must serve a sealed copy of the document referred to in order 4 above on the first respondent, by 5:00pm on 4 December 2024.
6.In the event that order 4 above is complied with:
a.the time to make the originating application in this matter is extended up to, and including, 2 August 2017 pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act); and
b.the proceedings are to be listed for final hearing before Judge Given at a time to be fixed administratively, in consultation with the parties.
7.The applicant must file and serve a written outline of submissions (not exceeding 10 pages) and list of authorities, 14 days before the final hearing referred to in order 6(b) above, and provide a version of the former 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 (not exceeding 10 pages) and list of authorities, 7 days before the final hearing referred to in order 6(b) above, and provide a version of the former in Word format by email to the Chambers of Judge Given on the date of filing.
9.If the applicant is not represented by a lawyer, then at least 2 days before the final hearing, the first respondent must file and serve an Affidavit pursuant to r 6.05 of the Rules which evidences:
a.service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and
b.any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
10. In the event that order 4 above is not complied with:
a. Orders 6 to 9 (inclusive) above are vacated;
b.the application for an extension of time made on 2 August 2017 is refused pursuant to s 477(2) of the Act; and
c.the applicant must pay the first respondent’s costs and disbursements, of and incidental to the proceedings as agreed, or failing agreement, as taxed in accordance with the Federal Court Rules 2011 (Cth).
(November Orders)
On 3 December 2024, the applicant filed an amended application for extension of time in accordance with order 4 of the November Orders. Accordingly, by the effect of order 6 of the November Orders, the time in which to make the application for judicial review was extended up to and including, 2 August 2017, pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act).
On 2 April 2025, after obtaining the mutual availabilities of Counsel, the proceedings were listed for final hearing before me on 6 May 2025.
On 24 April 2025, the applicant filed a further amended application, outside of the time prescribed by the November Orders (Further Amended Application).
Written submissions were filed for the applicant on 24 April 2025, and for the first respondent on 2 May 2025, again outside of the time prescribed by the November Orders.
At hearing, the applicant was represented by his solicitor and the first respondent was represented by his Counsel. Leave was granted to the applicant to rely upon the Further Amended Application, such leave not having been opposed.
For the first respondent were read the following Affidavits, without objection:
(a)Affidavit of Thomas Manousaridis affirmed on 22 April 2022 which annexed a transcript of the Department of Home Affairs interview dated 2 May 2016; and
(b)Affidavit of Kym Fraser made on 5 May 2025 (Fraser Affidavit) which sought to explain the first respondent’s lateness in the filing of his submissions (see [7] above). In that respect, the first respondent’s Counsel also appropriately conveyed his instructor’s apology for the oversight, which was accepted by the Court. The Fraser Affidavit has not subsequently been filed, despite reliance upon it. Accordingly, I will make orders requiring this to occur in order to complete the Court file.
The Court Book was tendered for the first respondent and received by the Court as Exhibit “1R”.
In the preparation of these reasons for judgment, I have been assisted by the submissions made for each of the parties, both written and oral. The parties each being represented (by Counsel who are highly experienced in the jurisdiction) has also enabled the Court to deal with the grounds succinctly.
GROUNDS OF REVIEW
The Further Amended Application raises the following three grounds of review (emphasis in original and footnotes omitted):
1.The second respondent failed to consider the review material provided by the Secretary pursuant to section 473CB of the Migration Act 1958 (Cth) (‘the Act’), when reviewing the decision of the first respondent and fell into jurisdictional error.
Particulars
a. The second respondent made no findings of fact in relation to letters attesting that the applicant was a member of the Eelaver Democratic Front (Popular Front EROS) (EROS), signed by the Secretary General of that party.
b. The second respondent’s Decision and Reasons reveals no consideration of the EROS letters attesting to the Applicant’s claimed political involvement in the EROS party.
c. The second respondent was required to review the decision of the first respondent’s delegate by considering the review material pursuant to s 473DB(1). Its failure to do so deprived it of relevant and cogent information and infected its ultimate conclusion: that the applicant had fabricated his political involvement to bolster his protection claims and as such faced no risk of serious harm upon his return to Sri Lanka.
2.The applicant was bound to review the decision on the papers: s 473DB. This was its primary requirement. The second respondent was mandated to have regard to the review material provided to it by the Secretary and by its failure breached the strict requirements of the exhaustive statement of the requirements for the natural justice hearing rule governing the conduct of the review.
3.The second respondent failed to consider a claim, clearly articulated on the material: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]-[61] that upon return to Sri Lanka, the applicant would continue his political activities to champion Tamil rights leading to a real chance of persecution. The Decision Record reveals no determination or consideration of this claim against requirements in s 36(2)(a) or s36(2)(aa).
a. The second respondent expressly noted the applicant’s claim that “he will continue to be politically active – because the Singhalese (sic) continue to treat Tamils as slaves in Eastern province” CB [192]-[193]. The Authority’s finding that “I am not satisfied that the applicant will face a real chance of serious harm from paramilitaries or political opponents for reason of the applicant’s claimed pro-EROS political opinion, now or in the reasonably foreseeable future” CB [194] did not consider whether the applicant would continue to engage in political activities upon his return to Sri Lanka, and if not, whether the sole reason, would be to avoid persecution, a non-permissible modification: S 5J(3)(a) and (3)(c)(iii).
b. Similarly, the reasons of the reviewer, particularly at [43], that “in relation to the balance of claims which I accepted as credible, I found above (sic) the applicant singularly or cumulatively does not have a real risk of serious harm on the basis of: imputed pro-LTTE or anti-Sri Lankan government political opinion his age, he is a Tamil, he was born in Eastern province, he was subject to harassment and assaults during the Sri Lankan civil war and/or because he will return to Sri Lanka as a failed asylum seeker” CB [198-199]. This summary makes no finding about nor deals with the real risk of significant harm arising as a necessary and foreseeable consequence of the applicant being removed from Australia on account of the applicant’s clearly articulated claim that he would be politically active upon his return.
Grounds 1 and 2
It is appropriate to deal with the first two grounds of review together, in circumstances where ground 1 alleges the Authority failed to consider the review material provided by the secretary pursuant to s 472CB of the Act, and where ground 2 asserts jurisdictional error by reference to the same failure.
Specifically, the first ground contends that the Authority failed to consider three documents being letters pertaining to the applicant’s involvement with EROS (CB 80, 88 and 89). The applicant says that the documents (letters) were individually and cumulatively relevant to his claims that:
(a)he was politically active and a member of EROS;
(b)he was a full-time member of EROS since July 2006;
(c)he held a political opinion contrary to the Sri Lankan government evident in his campaigning for Tamil politicians;
(d)he was the target of death threats from armed groups; and
(e)he desires to continue political activities upon return to Sri Lanka.
The applicant draws specific attention to [11] of the Authority’s reasons (CB 193) which conclude that:
for the below reasons the applicant claims regarding his political activities and his political opinion are not credible
and observes that the subsequent paragraphs [12] to [18] of the decision make no reference to the letters. The applicant says that this omission indicates a failure to have regard to the letters, which is said to have deprived the Authority of relevant and cogent information. The applicant contends that this failure infected the Authority’s ultimate conclusion that the applicant:
(a)had fabricated his political involvement to bolster his protection claims; and as such
(b)faced no risk of serious harm upon his return to Sri Lanka.
Ground 2 asserts that Authority failed to observe s 473DA by failing to conduct the review in accordance with the requirements in Division 3 of Part 7AA. In other words, the applicant says there was no discretion available to the Authority to not consider the review material.
In respect of the first two grounds, the first respondent has identified the following three questions as arising for determination:
(a)whether the lack of reference to the letters in the Authority reasons, leads to an inference that the letters were not considered by the Authority;
(b)what is the consequence if the Court were to find that the Authority did in fact overlook or ignore the letters; and
(c)if the consequence is that the Authority erred, was that error material?
In relation to the first question, the first respondent accepts that the Authority did not expressly refer to the letters but contends that the lack of reference is not, in and of itself, a basis for the Court to conclude that the letters were not considered. The first respondent observes firstly that the Authority it had considered the review material provided by the Secretary at [3] (CB 191), and that it did not purport in its reasons to refer to all of that material either. The first respondent submits that the Authority was not required to refer to all the review material, citing Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 per McKerracher, Gleeson and Burley JJ.
The first respondent says it is most unlikely that, having had before it a relatively limited number of documents on the review, the Authority simply overlooked or failed to consider the letters. The Court is urged by the first respondent to infer that the Authority, having considered the letters, determined them to not be evidence upon which it drew its conclusions at [17]. The first respondent says this is because the letters were not, on their face, documents which compelled any particular conclusion about the applicant’s claims to have been involved with EROS and, therefore, to have been the subject of adverse attention as a result thereof, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
In respect of the issue at [18(b)] above the first respondent submits that the letters did not constitute “definitive proof” of the applicant’s association with the organisation or the veracity of his protection claims. Therefore the first respondent says that, even assuming the Authority did fail to consider the letters, they were not of an important or critical nature to the review (citing VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 per Hill, Sundberg and Stone JJ at [77] and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J at [77], [98], [111], [112] and [117] to [122]) and as such the failure to consider them would not result in jurisdictional error.
Consideration
The applicant bears the onus of establishing that the Authority overlooked the letters. For the reasons which follow, I am satisfied that he has not discharged that burden.
In EEI17 (supra) the Full Court of the Federal Court observed as follows at [49]:
…The obligation to give reasons is not commensurate with the obligation to consider the review material. Section 25D of the Acts Interpretation Act 1901 (Cth) applies to s 473EA of the Act; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (per Flick, Markovic and Banks-Smith JJ) at [47]-[49]. The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); BVD17 at [45]; AQR17 v Minister for Immigration and Border Protection [2018] FCA 901 at [14]-[15].
In XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks‐Smith and Anderson JJ observed at [27] that a beneficial construction is to be adopted in construing the reasons of the decision‐maker, saying (footnote omitted):
…In this regard, it is well established that the reasons of an administrative decision‐maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Wang v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
Undertaking the requisite, beneficial reading of the Authority’s reasons for decision, and bearing in mind the aforementioned principles in EEI17 about the giving of reasons (specifically in an Authority context), it is tolerably clear that by the time the Authority reached its findings about the applicants’ alleged involvement in EROS, the matters upon which it based its decision had been explained. In this regard I accept the first respondent’s submission as summarised at [20] and [21] above and am not satisfied that the Authority has, in fact, overlooked the letters.
The Authority had, by the time it reached its conclusions at [17] of the decision set out significant discrepancies in the applicant’s claims and evidence which culminated at [17] as being the bases for its rejection of his involvement with EROS. Those bases are those which are summarised at [8(a)] of the interlocutory judgment (see [3] above). Given the findings about the lack of harm to Mr X despite his allegedly higher profile in EROS, the various inconsistences in the applicant’s accounts between written statements and his SHEV interview, and the late-raising of the petrol bomb claim, the Authority did not accept the applicant's claims regarding EROS to be credible to the extent that it found the applicant had fabricated them as a basis upon which to apply for protection. I am satisfied that finding was open to it.
It can be accepted that there are some cases in which a particular document is so obviously relevant or cogent to the consideration of claim that a failure to mention it will more likely signify that it was not considered that its absence from the reasons points to a failure by the decision-maker to consider that document, and in that way to fail to consider the claim that that document purported to support. I am not satisfied that the letters are documents of that kind such that it could be inferred from omission of reference to them in the reasons of the Authority that they were not considered: Cf SZRKT (supra) and VAAD (supra).
Having regard to the Authority’s reasons read holistically, but more specifically its comprehensive findings rejecting the EROS claims, I am satisfied that the Authority did consider the letters but proceeded on the basis that they were not material to alter the anterior factual findings at [12] to [17] of the reasons of decision.
When regard is had to the content of the documents themselves, that conclusion is reinforced, in particular given that they are each reference letters, of reasonably generalised content and were proffered in clear contemplation of the applicant seeking asylum in Australia, being an exercise the Authority had already concluded was without legitimate basis in respect of the EROS claims.
Overall, I am not satisfied that the Authority overlooked the letters. Even if I am wrong about that, applying a counterfactual the letters could not realistically have resulted in the Authority recaching a different decision.
Ground 3
Ground 3 asserts that the second respondent did not properly to conduct its review because it failed to consider a claim (or an integer thereof) which, he says, squarely arose on the material. That claim was that upon return to Sri Lanka, he would continue his political activities to champion Tamil rights leading to a real chance of persecution, citing on SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465 at [15] and Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42].
The applicant says that the finding that a claim or an integer is apparent is not to be made lightly and the claim must “clearly emerge from the materials, the claim must be based on “established facts”, citing AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ. In submissions in-chief, the applicant pre-emptively contended that, if the first respondent were to seek to impugn ground 3 by asserting there were two separate and independent bases for decision, such an assertion was not supported by a reading of the Authority’s reasons when read as a whole, citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 12 at [35], [41] and [46].
The first respondent says that no error of the kind alleged by ground 3 is apparent because the Authority expressly recognised that an aspect of the applicant’s claim as to why he feared harm was that he would engage in similar political activity if he returned to Sri Lanka.
The first respondent also says that, while acknowledging it, the Authority did not need to address that aspect of the claim separately from the other aspects of the applicant’s claims. Namely his claim that he was in the past an EROS member who had engaged in particular activities, was the subject of adverse attention, left Sri Lanka due to a fear of harm from political opponents), and that the Authority having expressly recognised that a feature of the applicants claim was that he would engage in similar political activity in Sri Lanka and then having rejected those applicant’s claims (at [17]). It had to follow that it had also rejected his claim that if he returned to Sri Lanka, he would do so. Based on the Authority’s findings, the first respondent submits that there was nothing to continue in circumstances where the applicant had been found to have fabricated his claims of political involvement and activity.
Consideration
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46] to [47], the Full Court of the Federal Court (French, Sackville & Hely JJ) said the following (emphasis added):
46. It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I accept the assertion that the applicant claimed that he would return to Sri Lanka and would continue to be politically active did squarely arise on the material before the Authority, and that it was also identified in the Authority’s reasons at [9] where it said as follows (emphasis added):
The applicant has consistently claimed he fears to return to Sri Lanka because he was threatened in the past for reason of his political opinion. He claims he was a member of the EROS. In August 2012, in the lead up to the Eastern Provincial Council elections, he carried out campaign work for about 2 weeks, which brought him to the attention of unknown Tamil paramilitary groups. The unknown Tamil paramilitary groups threatened to harm the applicant if he did not cease his pro-EROS campaign work. The applicant then went into hiding and left Sri Lanka illegally. The applicant told the delegate, if he returns to Sri Lanka, he will continue to be politically active – because Singhalese continue to treat Tamils as slaves in Eastern province.
The Authority was clearly not unaware that the applicant was making the claim in question.
However, as the first respondent submits the claim, or the aspect or integer of the claim, was not that the applicant will be a politically active simpliciter. Rather, it was that the applicant would continue to be politically active, “because Sinhalese continue to treat Tamils as slaves in Eastern province”. The applicant was advancing a claim that if he were to return to Sri Lanka, he would continue that which he had undertaken in the past in terms of alleged political activity. For the reasons already outlined in respect of grounds 1 and 2 above, the difficulty for the applicant on that regard is that the Authority found he fabricated those political claims.
Accordingly, there was nothing, as a matter of fact based on the findings of the Authority, for the applicant to continue. It had rejected the applicant’s past political activity as having been fabricated. Accordingly, and as is expressed in Applicant WAEE (supra) at [47], the Authority had rejected the factual premise upon which the applicant’s contention rests. The Authority did not have to make a separate finding after [17] to assess whether the applicant would resume political activity on return, having rejected those earlier claims.
The ground does not establish error.
CONCLUSION
The applicant has not established the errors alleged by the Amended Application. Absent jurisdictional error, the decision is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 10 September 2025
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