DYP18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1473
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYP18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1473
File number(s): SYG 2126 of 2018 Judgment of: JUDGE ZIPSER Date of judgment: 5 September 2025 Catchwords: MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider applicant was a child at time events occurred – whether Authority acted unreasonably in not exercising power under s 473DC to obtain English translation of document in foreign language - application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 36, 65, 473DC, 473DE, 476 Cases cited: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130; 252 FCR 540
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 8 August 2025 Place: Parramatta Applicant: In person, assisted by an interpreter Solicitor for the Respondents: Mr J Fyfe (Minter Ellison) ORDERS
SYG 2126 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYP18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $5,890.
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 ZIPSER
INTRODUCTION
On 1 August 2018, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 29 June 2018. The IAA affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHEV) under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In October 2012, the applicant, a citizen of Sri Lanka with Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival.
On 7 March 2017, the applicant lodged an application for a SHEV, claiming to fear harm if he returned to Sri Lanka.
On 3 October 2017, a delegate of the first respondent, after interviewing the applicant on 31 August 2017, made a decision refusing to grant the applicant a SHEV.
On 6 October 2017, the matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
On 4 November 2017, the applicant's representative provided a short submission to the IAA.
On 29 June 2018, the IAA made a decision affirming the delegate’s decision not to grant the applicant a SHEV.
IAA’S DECISION
The IAA at [2]-[5] listed the information to which it had regard.
The IAA at [6] summarised the applicant’s claims for protection.
The IAA at [8]-[46] considered whether the applicant met the requirements of the definition of ‘refugee’ in s 5H(1) of the Act and thereby satisfied the criterion for a protection visa in s 36(2)(a) of the Act. The IAA accepted some aspects of the applicant’s claims, but not others. In relation to the applicant’s claims:
(a)The IAA at [10]-[20] considered the applicant’s claims arising from his uncle’s involvement with the LTTE. The IAA at [20] did “not accept the applicant’s uncle was involved with or a supporter of the LTTE or perceived as such” and did “not accept the applicant or his family were of interest to the Sri Lankan authorities because of his uncle”.
(b)The IAA at [21]-[28] considered the applicant’s claims arising from being a Tamil fisherman. The IAA at [28] was “satisfied that even if the applicant were to return to Sri Lanka and continue to work as a Tamil fisherman, the applicant would not suffer harm”.
(c)The IAA at [29]-[35] considered the applicant’s claims arising from being a young Tamil. The IAA at [35] was “not satisfied the applicant faces a real chance of harm as a Tamil or because of any actual or imputed pro-LTTE or anti-Sri Lankan government political opinion on his return to Sri Lanka now or in the reasonably foreseeable future”.
(d)The IAA at [36]-[45] considered the applicant’s claims arising from having departed Sri Lanka illegally and found that the applicant did not face a real chance of serious harm on this basis.
(e)The IAA at [45] concluded:
I am not satisfied the applicant faces a real chance of serious harm in Sri Lanka for any of the reasons claimed, including as a 24 year old male Tamil asylum seeker who departed illegally on his return to Sri Lanka now or in the reasonably foreseeable future.
The IAA at [47]-[52] considered whether the applicant satisfied the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act. The IAA at [52] concluded that the applicant did not meet s 36(2)(aa).
Judicial review application and steps up to hearing on 8 August 2025
On 1 August 2018, the applicant filed in this Court an application for judicial review of the IAA’s decision. The application contained the following three grounds (as written) (Application):
Ground 1 - The Authority failed to consider that the applicant was aged 13/14 a minor at the time his uncle was killed in 2006 and due to this reason fell into error.
Particulars
1. The applicant was very young when his uncle was killed.
2. The IAA failed to consider that because the applicant was a child when the 2006 incident happened he may not have remember[ed] everything.
3. The IAA failed to consider that the applicant was recollecting incidents and involvement of his uncle with the LTTE that all happened when the applicant was still a child, therefore the evidence was bound to be inconsistent.
4. The Authority's finding at [17] and [19] regarding the uncle was so unreasonable a reasonable decision maker may not make such a finding if the decision maker considered the fact that the applicant was only 13/14 years when the incident in 2006 happened which was when the uncle was also involved in the LTTE.
5. The IAA states at [19] in its reasoning that "There is nothing in any of these documents including the untranslated obituary notice to indicate that his uncle was involved in the LTTE or that the Sri Lankan authorities had shot him". This is an unreasonable expectation because the Sri Lankan authorities or for that matter state authorities will not state on an official death certificate document that they shot an individual due to his LTTE involvement. It would have been reasonable to expect the authorities to conceal the reason for the death if the death was due to LTTE links or LTTE related.
6.The fact that the documents did not state that the applicant's uncle was killed due to LTTE links or shot by the SL authorities could not have led the IAA to make a finding that what the applicant said was untrue.
Ground 2 - The Authority's finding at paragraph 32 is affected with legal error
Particulars
1. The applicant was very young when his uncle was killed, the IAA drew negative inferences not considering that the applicant was narrating from the past when he was only a child.
2.The authority states at [32] "I accept there is credible evidence of serious harm being perpetrated against certain Tamils associated with, or perceived to be associated with the LTTE ... "
3. The authority's finding at [32] is affected with legal error, it failed to acknowledge the applicant was a child, came to the wrong conclusion that he was inconsistent and therefore unconvincing [17] and then concludes wrongly at paragraph 32 that the applicant does not face a real chance of any adverse interest upon return [32].
4. The finding at [32] was affected with legal error as the finding at [17] was not open to the authority as it failed to consider the age factor.
Ground 3 - The Authority failed to put the new information it obtained - the DFAT report, to the applicant for comment
Particulars
1. The IAA failed to provide a copy of the DFAT report it obtained which it says was new information [5].
2. The Authority breached the section of the act as it was required to put this information as it considered the report part of its reasoning which was relevant.
Following a long period of inactivity, on 2 June 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application, and any additional evidence on which he sought to rely.
On 19 June 2025, the registry of the Court informed the parties that the matter was listed for hearing on 8 August 2025.
On 24 July 2025, the first respondent filed a written submission (RS).
The applicant did not file or serve any further materials before the hearing on 8 August 2025.
Hearing on 8 August 2025
At the hearing in this Court on 8 August 2025, the applicant appeared unrepresented, assisted by a Tamil interpreter. James Fyfe from Minter Ellison appeared for the first respondent
The applicant brought to the hearing a copy of the Court Book, filed by the first respondent on 19 September 2018, which contained the IAA’s decision and documents before the IAA. At the commencement of the hearing, I directed the applicant’s attention to the IAA’s decision. I explained that the Court’s role was limited to considering whether there was a jurisdictional error, which I described as a significant error or mistake, in the IAA’s decision. With reference to the IAA’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the IAA’s decision.
I offered the applicant a 10 minute break to consider oral submissions he wanted to make. The applicant took up this opportunity.
After the break, Mr Fyfe tendered a copy of the Court Book (CB). The applicant did not seek to tender additional evidence.
I invited the applicant to make oral submissions. The applicant stated:
(a)He attended some events conducted by the LTTE when he was about 14 years old, but the IAA did not accept that the applicant attended the events.
(b)He knows some people who have returned to Sri Lanka who face a significant risk of harm.
(c)He provided to the Department of Immigration and Border Protection (Department) an obituary notice for his uncle written in Tamil, but he did not provide an English translation to the Department. If the IAA had asked him to provide an English translation, he could have provided it.
Mr Fyfe in his oral submissions principally relied on the first respondent’s written submission filed in July 2025. Mr Fyfe also addressed the matters raised by the applicant in oral submissions.
CONSIDERATION
Grounds in Application
Ground 1
The applicant stated in a statutory declaration dated 1 March 2017 accompanying his protection visa application: (CB 72)
4. My mother's brother (…) was an LTTE supporter, and he was shot and killed by the Sri Lankan army, as they believed he was an LTTE supporter. Though the death certificate states that my maternal uncle was shot and killed by unknown persons, my family believe that he was shot and killed by the Sri Lankan army.
5. I was a young boy at the time and do not know much about the level of support my uncle provided to the LTTE, however remember my uncle hanging around with LTTE members. My maternal uncle I remember was a fisherman.
6. My family had problems on account of my uncle's involvement and support he provided to the LTTE.
…
12. If I am returned to Sri Lanka I fear I could be seriously harmed by the Sri Lankan authorities.
…
c. I am closely connected to an individual (my maternal uncle) who the family believes was shot and killed by the Sri Lankan army due to his involvement in the LTTE.
The IAA considered this claim at [10]-[20]. The IAA at [10]-[11] summarised the applicant’s evidence concerning this claim in his statutory declaration, including that the applicant “was a young boy at the time”. The IAA at [12]-[16] summarised the applicant’s evidence concerning this claim in his interview with the first respondent’s delegate in August 2017, including “that he had no idea what his uncle did” and “his mother told him about his uncle’s involvement” with the LTTE. The IAA at [17]-[20] made findings including the following:
17. I accept the applicant's uncle, SM died on 26 July 2006 after being shot. The applicant's evidence is corroborated by the register of deaths certificate and obituary notice. However, I have found the applicant's evidence regarding his uncle's involvement with the L TTE and the claim that his uncle was shot by the Sri Lankan authorities to be unconvincing.
…
19.Furthermore, I found the applicant's evidence regarding his uncle's involvement in the LTTE to be vague and unconvincing. Other than ambiguous references to "strikes" and "burning of tires" the applicant was unable to provide any coherent evidence about his uncle's involvement with the LTTE. I have also considered the contents of the death certificate and letter from the "Officer in Charge" of the China Bay, Police Station. The death certificate and letter records that the applicant's uncle was shot and his death caused by "unknown persons". There is nothing in any of these documents including the untranslated obituary notice to indicate that his uncle was involved in the LTTE or that Sri Lankan authorities had shot him.
20.I am not satisfied the applicant has been a truthful witness regarding these aspect of his claims. I do not accept the applicant's uncle was involved with or a supporter of the LTTE, or perceived as such. I do not accept that his uncle's death was attributable to the Sri Lankan authorities. I do not accept the applicant or his family were of interest to the Sri Lankan authorities because of his uncle. I do not accept that on one occasion the applicant was physically assaulted by the SLA at grocery store. Nor do I accept that he or his family were ever questioned about his uncle or that after his departure the Sri Lankan authorities have questioned his family about him or his whereabouts.
The applicant complains in ground 1 of the Application that the IAA “failed to consider that the applicant was aged 13/14 a minor at the time his uncle was killed in 2006”. The applicant clearly stated in his statutory declaration, which the IAA expressly considered at [10]-[11], that the applicant “was a young boy” at the time his uncle died. I consider that the IAA was aware, and took into account, that the applicant was a young boy at the time his uncle died. As stated by the first respondent at RS [17], “the Authority was plainly aware of the applicant’s age and the applicant's evidence at the protection visa interview that 'he had no idea what his uncle did' and that it was his mother who had told him about his uncle's involvement with the LTTE”.
The applicant also complains in particular (3) of ground 1 that the IAA “failed to consider that the applicant was recollecting incidents and involvement of his uncle with the LTTE that all happened when the applicant was still a child, and therefore the evidence was bound to be inconsistent”. As stated above, I consider that the IAA was aware, and took into account, that the applicant was a young boy at the time his uncle died. The IAA found that the applicant’s evidence regarding his uncle’s involvement with the LTTE was “unconvincing” (at [17]) and “vague and unconvincing” (at [19]). The IAA, in the second sentence of [19], provided reasons in support of its finding that the applicant’s evidence was vague and unconvincing, including that “the applicant was unable to provide any coherent evidence about his uncle’s involvement with the LTTE”. The IAA was not required to discount its concerns about the applicant’s “vague and unconvincing” evidence because the applicant was a child at the time his uncle was killed. The IAA was merely required to take into account that the applicant was a child, which the IAA clearly did. Further, I agree with the first respondent’s submission at RS [17] that the IAA “was entitled to find that these claims [concerning the uncle] were not established on the evidence before it” and at RS [18] that the IAA’s “adverse credibility findings were findings of fact for it to determine” and “the matters assessed by the Authority in this regard provide a logical foundation for its conclusion that the applicant’s claim [concerning the uncle] should not be accepted”.
The applicant, in particulars (5) and (6) of ground 1, complains about the IAA’s finding at [19] that “there is nothing in any of these documents including the untranslated obituary notice to indicate that his uncle was involved in the LTTE or that Sri Lankan authorities had shot him”. The applicant did not disagree with the correctness of this finding. I do not accept that this finding involved an “unreasonable expectation” by the IAA or that the IAA relied on the absence of information in the documents in a manner which involved a jurisdictional error.
For the above reasons, ground 1 does not identify a jurisdictional error in the IAA’s decision.
Ground 2
It is not clear from ground 2 of the Application whether the applicant’s complaint that a finding of the IAA at [32] “is affected with legal error” is:
(a)based on the applicant’s challenge to the IAA’s finding at [17] (which is the subject of ground 1); or
(b)independent of the applicant’s challenge to the IAA’s finding at [17].
If the applicant’s challenge to a finding of the IAA at [32] is based on the applicant’s challenge to the IAA’s finding at [17], as explained in paragraphs 24 to 29 above, I do not accept that the IAA erred in finding at [17] that the applicant’s evidence concerning his uncle was “unconvincing”.
If the applicant’s challenge to a finding of the IAA at [32] is independent of the applicant’s challenge to the IAA’s finding at [17], the basis for the applicant’s challenge is unclear. The IAA’s findings at [32] were part of its consideration (at [28]-[35]) of the applicant’s claim that, if he returns to Sri Lanka, “he will be harmed because he is a young male who resided in a former LTTE controlled area in the Eastern province …” (at [29]). The applicant appears to complain in ground 2 that the fact that the applicant was a child at the time his uncle was killed has a bearing on the IAA’s findings at [32]. I do not see the link. Even if there is a link, this does not mean there is an error in the IAA’s findings at [32], let alone a jurisdictional error.
For the above reasons, ground 2 does not identify a jurisdictional error in the IAA’s decision.
Ground 3
The IAA stated at [5]:
I have also obtained Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report: Sri Lanka", 23 May 2018 which relevantly reports on the situation for Tamils in Sri Lanka and returnees to Sri Lanka. It has been prepared specifically for the purpose of protection status determination and updates the DFAT report on Sri Lanka published on 24 January 2017 which was before, and relied upon by, the delegate. I am satisfied there are exceptional circumstances to justify consideration [of] this new information.
The applicant complains in ground 3 that the IAA “breached the section of the Act as it was required to put” the DFAT report dated 23 May 2018 (2018 DFAT Report) to the applicant for comment. The applicant does not identify the section of the Act he complains the IAA breached. If the applicant intended to refer to s 473DE of the Act, I agree with the first respondent’s submission at RS [21] that “this ground does not establish jurisdictional error given that the documents of this nature are specifically excluded from the operation of s 473DE(1) by s 473DE(3) of the Act” – see specifically s 473DE(3)(a) and case law concerning the meaning of “information that is not specifically about the applicant … and is just about a class of persons of which the applicant … is a member” such as SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130; 252 FCR 540 at [61]-[70]. Further, the applicant has not identified any information in the 2018 DFAT Report which:
(a)was not in the DFAT report dated 24 January 2017 which was before the delegate; and
(b)“would be the reason, or a part of the reason, for affirming the fast track reviewable decision” within the meaning of s 473DE(1)(a)(ii).
I also agree with the first respondent’s submission at RS [22] that, separate from the obligation imposed on the IAA by s 473DE, “the new information obtained from the DFAT report … did not give rise to any new issues and the Authority was not required to give the applicant an effective opportunity to address that information”.
For the above reasons, ground 3 does not identify a jurisdictional error in the IAA’s decision.
Matters raised by applicant at hearing on 8 August 2025
As stated in paragraph 22 above, the applicant explained at the hearing on 8 August 2025 that he provided to the Department an obituary notice for his uncle written in Tamil, but he did not provide an English translation to the Department, and if the IAA had asked him to provide an English translation, he could have provided it.
The obituary notice in Tamil appears at CB 99. The IAA at [17] referred to the obituary notice as evidence which corroborated the applicant’s claim that his uncle died on 26 July 2006. Although the obituary notice is written in Tamil, the date “26.07.2006” appears on the document in Arabic numerals.
I asked the applicant to explain what information in the obituary notice, if translated into English, was relevant to the IAA’s decision. The applicant was unable to identify any such information in the obituary notice. The applicant conceded that the obituary notice does not state that the applicant’s uncle was killed by the Sri Lankan authorities.
There is also no evidence before the Court that the applicant:
(a)asked the Department or the IAA to obtain an English translation of the obituary notice; or
(b)explained to the Department or the IAA the relevance of any information written in Tamil in the obituary notice.
Further:
(a)The protection visa application form completed by the applicant and lodged with the Department in March 2017 included an instruction under the heading “Documents” that “If your documents are not in English, please also provide a certified English translation of the documents …” (CB 57).
(b)When the applicant lodged his protection visa application in March 2017, the application was accompanied by a bundle of documents (CB 80-101). For the majority of documents written in Tamil, but not the obituary notice, the applicant provided an English translation. The applicant did not explain to the Department why he did not provide an English translation of the obituary notice.
Pursuant to s 473DC of the Act, the IAA has power to “get any documents or information” (s 473DC(1)) or invite an applicant “to give new information” (s 473DC(3)) to the IAA. If the IAA failed to exercise this power in a manner which was legally unreasonable, this may be a jurisdictional error. As stated in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [84], “legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence”. Based on the evidence before the Court, there is no basis for concluding that the failure of the IAA to exercise the power under s 473DC to obtain an English translation of the obituary notice, or to ask the applicant to provide an English translation, was legally unreasonable.
For the above reasons, this matter raised by the applicant at the hearing on 8 August 2025 does not identify a jurisdictional error in the IAA’s decision.
No other matter raised by the applicant at the hearing on 8 August 2025 identifies a jurisdictional error in the IAA’s decision.
Court’s consideration of IAA’s decision
In light of the serious consequences for the applicant if there is a jurisdictional error in the IAA’s decision and the fact he has not obtained legal assistance for his judicial review application, on application of the approach in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the IAA’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the IAA’s reasons”. No mistake clearly appears in the IAA’s reasons for decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Mr Fyfe sought an order that the applicant pay the first respondent’s costs in the amount of $5,890 which was the first respondent’s party/party costs. The applicant did not oppose this amount. I consider the claim for costs is reasonable. I will make an order in this amount.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 5 September 2025
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