DYH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 610
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 610
File number(s): MLG 1119 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 2 May 2025 Catchwords: MIGRATION – application for judicial review – decision of the Immigration Assessment Authority to refuse to grant the applicant a safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority unreasonably refused to exercise its discretion to interview the applicant pursuant to section 473DB of the Migration Act 1958 (Cth) – consideration of the reasonableness of the Authority’s decision to not invite the applicant to an interview – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 473DB, 473DC Cases cited: AIB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1384
DCP v Minister for Immigration and Border Protection [2019] FCAFC 91
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 24 March 2025 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr R Kornhauser Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1119 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 26 May 2023 which affirmed a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse the applicant a safe haven enterprise visa (subclass 790) (‘protection visa’).
BACKGROUND
The applicant, a Sri Lankan citizen of Tamil ethnicity and Hindu religion, [1] arrived in Australia as an illegal maritime arrival on 4 November 2012.[2] In his entry interview in response to a question about why he left Sri Lanka he said:[3]
I came to save my life, the police and army and EPDP are after me through suspicion of my involvement with the LTTE, a friend of mine was shot in 2006 because of this suspicion.
(TOLD MENTAL HEALTH THAT I WASN’T TORTURED BECAUSE I THOUGHT THAT THEY WOULD THINK I’M CRAZY)
[1] Court book page 353.
[2] Court book page 351.
[3] Court book page 33.
The applicant also stated that he had been detained for three days in 2006, and again at the end of 2011, on suspicion of being LTTE and was also questioned about his friend who got shot.
On 23 September 2016, the applicant filed an application for a safe haven enterprise visa with the assistance of a migration agent. Attached to his application is a statutory declaration in which the applicant stated:[4]
[4] Court book at pages 39 to 99.
(a)he fled his country in 2012 because he was being harassed by the authorities and if he remained he would be arrested and tortured again;
(b)he corrected some of the information incorrectly included in his entry interview;
(c)after his daughter was born in October 2006, he and his family moved to Colombo where they remained until June 2009;
(d)after June 2009, he and his family had to constantly move due to his fears from the authorities;
(e)there was an incident in September 2006 when people started shooting at him and his friend EJ, and that whilst the applicant managed to run away, his friend EJ was shot dead;
(f)the applicant states that EJ may have been a recruiter for the LTTE and because he was working with EJ, that he would be targeted for his association with EJ;
(g)he then arranged to go to Qatar and work there for some time;
(h)by 2009, the applicant thought things may have settled down in Sri Lanka and he returned on 13 May 2009, at which time, he and his family moved to Jaffa;
(i)in October 2009, the applicant says he became aware that the CID were looking for him;
(j)the applicant believed that he was being pursued for imputed links to the LTTE;
(k)from November 2009, the applicant and his family left Jaffa and went into hiding in Vavuniya with a relative of his wife;
(l)the applicant tried to leave the country in early 2010 but was unable to do so, things then settled down for a period of time until about May 2011 when the authorities and the CID again started to look for him;
(m)ultimately, the applicant was detained and put in remand without being told what he was charged with – he says he was detained for four days, interrogated and beaten;
(n)the applicant says that during this period of detention, he was asked about EJ and was accused of being associated with the LTTE;
(o)the applicant was then released and was told to report every two days to the police station;
(p)after going into hiding for about five months, the applicant was able to arrange his departure to Qatar;
(q)after a few months in Qatar, the applicant returned to Sri Lanka thinking things might have cooled down and believing that he could return to Qatar if required;
(r)however, he was again pursued by the CID in Sri Lanka and was not able to return to Qatar; and
(s)he therefore arranged to leave Sri Lanka and fled to Australia.
In his statutory declaration, the applicant also sets out his fears if he were to return to Sri Lanka. Relevantly, he fears that he would be detained as a returnee from Australia and that whilst in detention, the authorities would discover that he was being pursued by the CID, and he would be interrogated and tortured. The applicant said that he feared that he would be held in detention for a long period of time. Finally, the applicant stated that he could not live safely anywhere in Sri Lanka.
By letter dated 8 March 2017, the applicant was invited to attend an interview scheduled for 29 March 2017, to discuss his visa application (‘SHEV interview’).[5]
[5] Court book pages 111 to 113.
By letter dated 19 May 2017, the applicant was advised that a delegate had refused to grant him a visa.[6]
[6] Court book pages 121 to 123.
By letter dated 24 May 2017, the applicant was advised that the decision to refuse to grant him a protection visa was referred to the Authority for review.[7]
[7] Court book pages 138 to 139.
By email dated 15 June 2017, the applicant’s lawyer and registered migration agent provided to the Authority a submission and attached various documents.[8] In essence the submission addressed the delegate’s reasoning which resulted in the delegate’s decision to refuse to grant the applicant’s visa application.
[8] Court book pages 150 to 154.
By letter dated 14 August 2017, the applicant was advised that the Authority had affirmed the delegate’s decision.[9]
[9] Court book pages 162 to 177.
Authority decision dated 14 August 2017
In its decision, the Authority accepted that to the extent that the submissions filed on behalf of the applicant contained new information, there were exceptional circumstances justifying the consideration of that material. In particular, the Authority noted that the recording of the SHEV interview indicated that the applicant attempted to provide the delegate with some documents including the death certificate now relied upon. The Authority noted at paragraph [6]:
6.The delegate treated the applicant’s attempt to provide these documents with disdain, stating that if the applicant provided a letter saying that he was ‘friends with John F Kennedy at the time of his assassination’ it would still not prove anything.
The Authority then set out the applicant’s protection claims at [7] – [13].
At [14] – [15] the Authority set out the applicable criteria to determine whether the applicant is a refugee.
The Authority then went on to consider the applicant’s claims against the applicable criteria.
Relevantly, in considering whether the applicant faced a risk of harm on the basis that the authorities would impute him with pro-LTTE or anti-Sri Lankan government political opinion, the Authority did not accept that EJ was shot by members of the EPDP on 13 September 2006. The Authority found that the applicant’s claim regarding the death of EJ lacked credibility on the following basis:
(a)by reference to country information about the level of document fraud in Sri Lanka and the inconsistency in the documents provided by the applicant to support this aspect of his claim [18] – [19];
(b)the Authority found the applicant’s account of the shooting to be farfetched; and
(c)the Authority found it implausible that the applicant would have assisted with EJ’s funeral in the circumstances as claimed.
The Authority also did not accept that the applicant was detained at the end of 2006. This conclusion was based on the fact that although the applicant initially made this claim in his entry interview, the applicant made no reference to this claim at all in the statutory declaration which ran to five pages.
The Authority also found it implausible that the applicant would return to Sri Lanka on 13 May 2009 if he feared harm from EPDP or the CID, in circumstances where the war was not officially over until 16 or 17 May 2009.
Similarly, the Authority did not accept that the applicant would have returned to Sri Lanka again in 2012 if he believed that he was of interest to the EPDP or the CID or other Sri Lankan authorities. The Authority formed the view that the applicant had fabricated his claims in relation to EJ’s death at the hands of the EPDP and subsequent CID interest to further his protection claims.
The Authority was prepared to accept that the applicant worked in construction and may have done some construction work for the LTTE prior to going to Qatar. However, the Authority went on to say:[10]
However, I consider this work to be remote in time and minor and I am not satisfied that they would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities now or in the reasonably foreseeable future.
[10] Authority decision record dated 14 August 2017, paragraph [27].
The Authority then considered relevant country information and concluded that it was not satisfied that the applicant’s ethnicity or the minor assistance he provided to the LTTE prior to 2007 or his residence in a former LTTE controlled area would cause him to be a person of interest to the Sri Lankan authorities.[11] Consequently, the Authority found that there was no credible claim of serious harm to the applicant for a convention reason.
[11] Authority decision record dated 14 August 2017, paragraph [30].
The Authority considered the risk of harm to the applicant as a result of discrimination against him on the grounds that he is a Tamil, at [32] – [34], on the ground that he departed Sri Lanka illegally at [35] – [42] and on the grounds that he would return to Sri Lanka as a failed asylum seeker at [43] – [46], concluding that he did not face a real chance of serious harm on any of these grounds. The Authority therefore concluded that the applicant did not satisfy the refugee criteria for the purposes of section 36(2)(a).
The Authority also considered whether the applicant met the complementary protection criteria at [48] – [54] and again concluded that he did not.
The Authority therefore affirmed the delegate’s decision.
On 29 March 2023, a judge of this court made orders quashing the Authority’s decision of 14 August 2017 and remitting the matter to the Authority for reconsideration according to law.[12]
[12] Court book page 178.
Authority decision dated 26 May 2023
By email dated 4 May 2023, the applicant’s new migration agent indicated that the applicant wished to provide further information to the Authority for its consideration. In that email, the applicant’s migration agent wrote:[13]
This new information includes his own involvement with the LTTE giving rise to his current claims and fears of return to Sri Lanka.
He has not provided this information before given his fears of being designated a terrorist or security risk by the Australian authorities, face prolonged detention or returned to Sri Lanka.
[13] Court book page 192.
The applicant’s migration agent indicated that they were seeking full instructions and sought additional time to provide a full submission and further information.[14] This request was agreed to in part.
[14] Court book page 192.
By email dated 18 May 2023, the applicant’s representative provided further legal submissions, a statutory declaration by the applicant and country information.[15] In his statutory declaration, the applicant provided further information about his involvement with the LTTE and explained why he had not provided that information either at his entry interview or in his initial application and statutory declaration or at his SHEV interview.
[15] Court book page 196.
By letter dated 26 May 2023, the Authority advised the applicant that it had decided to affirm the decision of the delegate to refuse his application for a visa.[16]
[16] Court book at pages 349 and following.
The Authority accepted that the statutory requirements were met to allow it to consider the new information provided by the applicant. It also had regard to an updated report from USDOS on Sri Lanka on the basis that it was more recent country information to that which had been considered by the delegate, given the time that had elapsed since the delegate’s decision.
The applicant’s representative also submitted that it was in the interests of justice for the Authority to exercise its discretion to interview the applicant to obtain further information from him about his role in the LTTE and his fears of harm on his return to Sri Lanka. In deciding not to exercise the discretion to interview the applicant, the Authority said:[17]
[11]… The legislative framework governing the IAA provides for an exhaustive statement of the natural justice hearing rule. The IAA is required, subject to Part 7AA, to review a matter without accepting or requesting new information and without interviewing the applicant (s.473DB). The IAA can obtain new information from an applicant, including at an interview, but can only consider that information in exceptional circumstances. The IAA is considering the submissions made by the applicant in 2023, as well as a range of new information provided by the applicant, including the applicant’s statutory declaration dated 18 May 2023. It is not apparent why he could not provide any further or additional details about his role with the LTTE or fears if returned in writing as part of the submissions made, or why he was unable to provide such information in the 18 May 2023 statutory declaration. I have decided not to exercise my discretion to interview or obtain further information from the applicant.
[17] Authority decision record dated 26 May 2023, paragraph [11].
The Authority then went on to consider the applicant’s evidence. It expressed concerns about the applicant’s credibility. In assessing the applicant’s credibility, the Authority noted the difficulty often faced by applicants for protection. In particular, the authority noted that the applicant did not identify the extent of his claimed involvement with the LTTE until his May 2023 statutory declaration.
The Authority noted that even if one accepted that he was concerned about disclosing this information when he initially arrived in Australia it did not explain why he waited seven years after his SHEV interview to do so. This is particularly so in circumstances where the applicant was assisted in preparing his application and his 2016 statutory declaration by a lawyer. The Authority also noted that whilst the applicant attended the SHEV interview without legal representation, the delegate made it clear to the applicant at the commencement of that interview that this was his opportunity to put forward all of his protection claims and to provide supporting evidence and that he may not have a further opportunity to do so. The Authority also expressed concern that if this new claim was true, that the applicant would not have raised it when the delegate’s decision was initially referred to the authority as first constituted.
The Authority at [19] identified a range of other concerns that it had about the applicant’s claims and evidence. At [20] it went on to observe that:
20.The issues identified above in relation to his evidence go beyond minor errors and discrepancies that could be attributed to factors such as recall problems, misunderstandings in interpreted material, cultural communication issues, and a lack of cohesive narration due to trauma or the passage of time. Overall, I am not satisfied that the applicant has provided a truthful account of events involving any adverse interactions between him and his various family members and the Sri Lankan authorities in Sri Lanka up to 2012. I am not satisfied that the applicant did any work for the LTTE; that E1 and the applicant were involved in September 2006 shooting; that the Sri Lankan authorities, the EPDP, or anyone else, has detained, questioned, mistreated, or made enquiries about, the applicant, including in May 2011; that the applicant was required to report to the Sri Lankan authorities; that the applicant was ever in hiding from the Sri Lankan authorities or anyone else; that the Sri Lankan authorities, the EPDP or anyone else suspected the applicant was a member of the LTTE; and that his family, friends, and neighbours in Sri Lanka have, whether before he left Australia in 2012 or afterwards, ever been asked about the applicant or his whereabouts. I am prepared to accept, based on country information, that he may have been stopped, questioned and harassed in minor way from time to time by the Sri Lankan authorities, when passing through checkpoints or in other day to day contacts with the authorities.
The Authority accepted that the applicant if he returned to Sri Lanka would be considered a failed asylum seeker and that he would likely return to Columbo if he returned to Sri Lanka.
The Authority then went on to consider whether the applicant satisfied the refugee criteria. It considered current country information including very recent developments in Sri Lanka. It was not satisfied that the applicant’s fear of harm in Sri Lanka on any stated basis, was well-founded. At [32], the Authority concluded that it was not satisfied that the applicant faced a real chance of harm in relation to those aspects of the applicant’s claims that it did accept, now or in the reasonably foreseeable future.
The Authority had regard to the improved situation in Sri Lanka reflected in updated country information as well as its assessment of the applicant’s personal profile (or lack thereof) in reaching this conclusion.
The Authority also accepted that the applicant, if he returned to Sri Lanka may be identified as a failed asylum seeker who departed Sri Lanka illegally.
The Authority also considered that as a result he might be detained under the Immigrants and Emigrants Act 1949, and that he might be interviewed by CID or other agencies. However, in light of its findings about his profile, the Authority did not accept that he would be at real risk of adverse attention or a real chance of harm from the Sri Lankan authorities when processed at the airport or on his return.
The Authority acknowledged that Sri Lanka was experiencing ‘an unprecedented economic crisis’, but it did not accept that his ‘prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood … or experience hardship to an extent that would threaten his capacity to subsist or otherwise lead to serious harm.’[18]
[18] Authority decision record dated 26 May 2023, paragraph [46].
The Authority therefore concluded that it was not satisfied that the applicant faced a real chance of persecution now or into the reasonably foreseeable future and therefore did not have a well-founded fear of persecution. Consequently, the authority found the applicant did not meet the requirements of section 36(2)(a).
The Authority also considered whether Australia’s complementary obligations were engaged and concluded that they were not in this case.
The Authority therefore affirmed the delegate’s decision not to grant the applicant a protection visa.
GROUNDS OF REVIEW
In his application to this court, the applicant challenges the Authority’s decision on the following grounds:[19]
1.The second respondent was unreasonable in determining that it would not interview the applicant in circumstances where it found that the applicant had not provided information about various matters.
2.The decision of the second respondent failed to take into account relevant considerations.
3.The second respondent did not properly consider the alternative criterion under the Complementary Protection provisions in particular that the Applicant will be subjected to degrading treatment or punishment.
[19] Application filed 23 June 2023.
Notwithstanding orders made on 15 October 2024 permitting the applicant to file and serve written submissions, any amended application and any additional evidence upon which he seeks to rely at least 28 days prior to the hearing, the applicant has not filed any such material other than an affidavit filed on 8 November 2024. Annexed to that affidavit, is a letter from the applicant’s employer dated 30 October 2024 attesting to the applicant’s work history and stating that his employer is prepared to provide the applicant with support ‘in this legal matter’.
Orders were also made on 13 November 2024 at which the applicant attended with the assistance of a Tamil interpreter including that the applicant file a Notice of Address for Service which included his current contact details.[20] The applicant filed a Notice of address for service on 21 November 2024.
[20] Orders of Registrar Foster dated 13 November 2024.
I will deal with each ground in turn.
CONSIDERATION
Ground 1 – unreasonable refusal to exercise discretion to interview the applicant
Section 473DB of the Act (as then in force) relevantly provided:
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
a. without accepting or requesting new information; and
b. without interviewing the referred applicant …
Section 473DC then deals with Authority’s discretion to obtain new information, including by inviting the applicant to provide such information either in writing or at an interview. It relevantly provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant
(2)The Immigration Assessment Authority does not have 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, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The discretion to invite an applicant to an interview, must be exercised within the bounds of legal reasonableness. As stated by the Full Court of the Federal Court in DCP v Minister for Immigration and Border Protection [2019] FCAFC 91:
106.The standard of legal reasonableness applicable to the exercise of a statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general power is being exercised …
107.As Li indicates, the exercise of power must be ‘legal and regular, not arbitrary, vague and fanciful’ … A lack of legal reasonableness may be concluded from an exercise of power ‘which lacks an evident and intelligible justification’ … It may be concluded from ‘an obviously disproportionate’ response or exercise of power in the particular circumstances … French CJ explained that it may be concluded from ‘a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut … [or exceeding] what, on any view, is necessary for the purpose it serves’ …
108.This Court in Minister for Immigration and Border Protection v Singh … has also emphasised two points … In each context in which it is to be assessed, legal unreasonableness is invariably fact dependent … Whether a particular exercise of statutory power or its lack of exercise descends into legal unreasonableness necessitates a careful evaluation of the evidence and its context in the particular application for judicial review … Second if the decision maker has given reasons for the relevant exercise of power or lack of exercise under challenge, then it is to those reasons ‘which a supervising court should look in order to understand why the power was exercised as it was’. More generally, the intelligible justification may be found within the reasons explicitly or implicitly for its exercise or its lack of exercise.
109.Further, applying a standard of legal reasonableness does not merely involve or justify substituting this Court’s view as to how a discretion should be exercised for that of the decision maker …
110.In summary, to demonstrate legal unreasonableness is a demanding standard and requires its demonstration against the statutory framework for making the decision to exercise or not exercise the relevant power. In the present context the scheme of Pt 7AA is such that save for limited circumstances, the Authority conducts its review on the papers …, and without accepting or requesting new information or interviewing the referred applicant. The Authority has power to invite the referred applicant to give new information … but it does not have any duty to get, accept or request new information. And the Authority will only consider new information if there are exceptional circumstances to justify doing so … and providing of course that one of the limbs in s 473DD(b) is made out. …
Similarly, in considering this issue in AIB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1384 at [85] – [86] Derrington J said:
85. Secondly, it is now well established that the operation of s 473DC of the Act is not to be assessed through the lens of procedural fairness, and a high threshold needs to be satisfied before it can be concluded that a decision not to grant an interview would be unreasonable: DUA16 at 563 – 566… Unlike in that case, here there are no extreme, extraordinary or special circumstances. There was no indication that the second appellant had additional information to provide which would qualify as “credible personal information” which might be accepted by the Authority. Though she indicated that she wanted to discuss her claim, there was nothing to suggest that anything she had to say would further the matters of which the Authority was already aware.
86. Thirdly, this is not a case, as it was in DUA16, where the appellant was not given an opportunity to provide information to the Authority. Substantial information about her claims had been given to and accepted by the Authority and, as mentioned, there was no indication that she would be able to provide anything further.
In this instance, the applicant’s representative indicated that it was in the interests of justice for the Authority to interview the applicant ‘in obtaining further information about his role in the LTTE and his fears of harm on return’. [21]
[21] Authority decision record dated 26 May 2023, paragraph [11].
In this case, the Authority’s reasons for not acceding to the applicant suggestion that it interview him are set out in paragraph [11] of its reasons. It stated:
11. The legislative framework governing the IAA provides for an exhaustive statement of the natural justice hearing rule. The IAA is required, subject to Part7AA, to review a matter without accepting or requesting new information and without interviewing the applicant (s.473DB). The IAA can obtain new information from an applicant, including at an interview, but can only consider that information in exceptional circumstances. The IAA is considering the submissions made by the applicant in 2023, as well as a range of new information provided by the applicant, including the applicant’s statutory declaration dated 18 May 2023. It is not apparent why he could not provide any further or additional details about his role with the LTTE or fears if returned in writing as part of the submissions made, or why he was unable to provide such information in the 18 May 2023statutory declaration. I have decided not to exercise my discretion to interview or obtain further information from the applicant.
In circumstances where the applicant had been provided with numerous opportunities to provide information that he considered relevant to his claim and where he in fact provided information about his role in the LTTE and the fear he had on his return, the Authority’s decision not to exercise its discretion to have a further interview was justifiable and reasonable.
The Authority concluded that the applicant had numerous opportunities to provide whatever information he wished to in support of his claim and that it was not satisfied, in the context of the statutory framework in Part 7AA, that it was appropriate to invite the applicant for an interview. The Authority provided a clear and intelligible basis for its conclusion that it was not prepared to exercise its discretion to invite the applicant in for an interview. This is particularly so where the Authority agreed to accept and consider the further information provided by the applicant’s representative.
In his grounds of review, the applicant claims that the Authority’s decision not to invite him for an interview was unreasonable in circumstances where the Authority had ‘found that the Applicant had not provided information about various matters’.[22]
[22] Application filed 23 June 2023.
If this is a reference to the findings made by the Authority in paragraph [18], (as suggested by the Minister), this overstates the Authority’s findings. The Authority did not find that there was additional information which the applicant had not provided which he could and would have done if given the opportunity to attend an interview. Rather in paragraph [18], when read fairly, the Authority was critical of the fact that the applicant delayed providing more detail about his involvement with the LTTE until filing his May 2023 statutory declaration when he had had numerous opportunities to do so in the years since his arrival in Australia.
The Authority made adverse credibility findings against the applicant because of the delay in providing information in support of his claim. Indeed, the Authority accepted that the applicant might have been concerned about providing fulsome information at his arrival interview but did not accept the applicant’s explanation for not providing that information either in his SHEV interview or in his submissions and additional material provided to the first Authority at which time he was legally represented. The Authority concluded at the end of [18]:
18.… The applicant’s failure to mention his new claim about assisting LTTE members to pass through SLA checkpoints (including an additional incident where he was detained and questioned by the authorities) until his May 2023 statutory declaration reflects very poorly on both the credibility of the new claim and his overall credibility.
This finding was reasonably open to the Authority and adds to the reasonableness of the Authority’s decision not to invite the applicant to an interview.
For these reasons, ground 1 is not made out.
Ground 2 – failure to take into account relevant considerations
The applicant does not identify what relevant considerations were not taken into account.
At the hearing before me, the applicant was asked to expand upon this ground and said that when this matter was previously before the court, that he was represented by a lawyer. I take this to be a reference to the earlier proceedings which found jurisdictional error and remitted the matter to the Authority. The applicant then said that he now does not have a lawyer and that his lawyer would have had more information about these matters. I understood this to be a reference to the applicant’s previous lawyers having more information about the grounds of review in his application.
The applicant went on to say that he has been living in Australia for quite a while, that when he left his country his child was 5 years of age, that he has been suffering from mental health issues, and that this has been a huge burden on him. The applicant then referred to the letter of support he provided from his employer.
I accept that it is difficult for an applicant without legal representation to properly argue their case and I make no criticism of the applicant when I say that these submissions, which clearly expressing the difficulties that he has found, do not provide any greater clarity on how the alleged jurisdictional error is made out.
There is no apparent error on the face of the decision record. Moreover, ground 2 invites the court to engage in impermissible merits review.
For these reasons, ground 2 is not made out.
Ground 3 – failure to properly consider the complementary protection criterion
By ground 3, the applicant claims that there has been a failure to properly consider the complementary protection criterion. Again, and without being critical of the applicant, I note that the applicant does not identify which aspect of the complementary protection criterion was not properly considered.
When asked to expand on this ground at the hearing before me, the applicant said that if he goes back he could be arrested and there is no protection for him.
No apparent error on the face of the decision record in this regard. The Authority correctly identifies the statutory provisions which apply. The Authority applied those provisions correctly at paragraphs [53] – [55].
Like ground 2, ground 3 invites the court to engage in impermissible merits review.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review raised by the applicant have been made out, I dismiss the applicant’s application.
As the applicant has been wholly unsuccessful it is appropriate for an order to be made that the applicant pay the first respondent’s costs.
I therefore make the orders at the commencement of these reasons for the applicant’s application to be dismissed and for the applicant to pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 2 May 2025
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