EJZ18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 1406

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EJZ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1406

File number(s):

SYG 2364 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

28 August 2025 

Catchwords:

MIGRATION – Whether it was legally unreasonable for the Immigration Assessment Authority to not exercise its discretion under s 473DC of the Migration Act 1958 (Cth) in circumstances of partial acceptance of claim by delegate which Authority then rejected on the basis of demeanour in manner identified in ABT17  

Legislation:

Migration Act 1958 (Cth) s 473CB

Cases cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Division:

General Federal Law

Number of paragraphs:

45

Date of hearing:

26 November 2024

Counsel for the Applicants:

Mr O Jones, on a direct access basis

Counsel for the Respondents:

Ms K Morris

Solicitor for the Respondents:

Clayton Utz

ORDERS

SYG 2364 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EJZ18

First Applicant

EKA18

Second Applicant

EKB18 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	28 AUGUST 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 6 August 2018, into this Court for the purpose of quashing it.

3.The name of the second respondent is amended to “Administrative Review Tribunal”.

4.A writ of mandamus shall issue, requiring the second respondent to re‐determine, according to law, the application for review before it.

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

JUDGE GIVEN:

1. The applicants seek judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority) made on 6 August 2018 (CB 378 to 399) which affirmed a decision of a delegate of the (then) Minister for Home Affairs (delegate) made on 7 June 2018 (CB 301 to 334), to refuse to grant them Safe Haven Enterprise visas (subclass 790) (visas).

   BACKGROUND

2. This following background is taken from the submissions of the parties and materials in the Court Book (CB).  Unless otherwise indicated, it is not in dispute.  The parties were ultimately each represented by Counsel who are experienced in this jurisdiction which has made it possible to set out, in narrow compass, the findings of the Authority relevant to the ground of review, and also to be brief in determination of the ground itself. 

3. Each of the applicants are citizens of Sri Lanka (CB 83, 123, 169 and 197).  The first and second applicants are husband and wife (respectively) who arrived in Australia as unauthorised maritime arrivals on 30 August 2012.  The third and fourth applicants are the minor children of the first and second applicants, and were born in Australia (CB 71, 169, 193, 197 and 221).  

4. On 23 June 2017, the applicants applied to the Department of the first respondent for the visas, with the assistance of their appointed representatives (CB 61 to 223). 

5. Only the first and second applicants raised protection claims.  The third and fourth applicants applied as members of their family unit (CB 379 to 382 at [5] to [6]). 

6. The first and second applicants claimed to fear harm from the Sri Lankan authorities on the basis of their Tamil ethnicity, their imputed LTTE profile, their religion as Hindus, and their association with groups/individuals who had previously been targeted by the authorities (CB 379 to 382 at [5] to [6]).  The second applicant also claimed to fear harm by reason of her gender (CB 381 at [8]). 

   Delegate decision

7. On 10 January 2018, each of the first and second applicants were invited (separately) to attend an interview with the delegate on 24 January 2018. 

8. On 7 June 2018, the delegate refused to grant the applicants the visas (CB 298).  In reaching that decision, the delegate noted there were inconsistencies in the evidence provided by the first and second applicants at their respective interviews about the timing of the first applicant’s arrest.  The delegate did however accept that the first applicant had been detained by authorities prior to his departure from Sri Lanka in 2012, finding as follows (CB 311):

   The applicant stated, at PV interview, that his arrest was in June 2012 and he departed Sri Lanka in August 2012. In Applicant 2’s arrival and induction interview she stated that while Applicant 1 was working in Colombo, three days prior to their departure from Sri Lanka, he was arrested and taken to a police station in Colombo. The applicant stated in his arrival and induction interview that the incident in 2012 occurred two days prior to his departure from Sri Lanka. I note the inconsistencies in relation to the timing of the incident, however, I accept that the applicant was detained by the authorities prior to his departure in 2012.

   Authority decision

9. After the delegate’s refusal, that decision was referred to the Authority for review on 13 June 2018.

10. The Authority considered the applicants’ claims in detail.  However, it is only the following specific aspects of the decision which are relevant to the application which is now before the Court. 

11. The Authority had regard to the material which was before the Secretary provided to it under

    
    

    s 473CB of the Migration Act 1958 (Cth) (Act) and noted that no additional submissions or information had been received (CB 379 at [1] to [4]).

12. The Authority summarised the first applicant’s claims for protection essentially as being that (CB 383 at [13]):

    (a)he was targeted by authorities and detained, beaten and arrested on multiple occasions between 2009 until 2012, including having been arrested a few days before he departed from Sri Lanka;

    (b)he required hospital treatment after being severely beaten in 2009;

    (c)he was conditionally released on payment of part of a bribe in 2012 just prior to his departure from Sri Lanka;

    (d)authorities perceive him to be LTTE because is a Tamil male who had lived in previously LTTE controlled LTTE areas, trained under a karate master who was perceived as anti-government and because of his “fit appearance”;

    (e)the authorities have been looking for him since his departure; and

    (f)he will be detained, tortured and killed upon return to Sri Lanka as he is suspected of being LTTE and because he departed Sri Lanka whilst being wanted by authorities and on conditional release for having not paid the full bribe.

13. The Authority summarised the second applicant’s claims for protection as being that (CB 383 at [14] to [15]):

    (a)she has also been targeted by authorities since 2009 because of her connection to her husband;

    (b)she was visited many times by the army, harassed and detained at checkpoints and had to move accommodation three times whilst they were living in Colombo;

    (c)her boss and mother had to vouch for her;

    (d)she confirmed her husband was first arrested in 2009 and beaten and detained a number of times since then; and

    (e)she (and the first applicant) feared their children would be unfamiliar with Sri Lanka, would be harassed and become orphans with no one to care for them.

14. The Authority considered the applicants’ claims, but considered their evidence to lack details, and be inconsistent and embellished (CB 383 at [18]).  

15. In relation to the first applicant’s evidence about being detained, the Authority considered the claimed “11 to 13 detentions” to be vague and lack details.  Specifically, the Authority noted that while the applicant described the 2009 detention, he did not describe the other and, at interview, was unable to recall when he was taken to a camp for “2 or 3 days”.  The Authority also found the “limited” account to be inconsistent and referred to several discrepancies between the applicants’ arrival interview and his statement and protection visa (CB 384 at [19]).

16. By reference to the applicant’s ground of review and the submissions in support thereof, it is convenient to set out the following paragraphs of the Authority’s reasons (errors in original):

    27. Applicant 1’s evidence about his 2012 detention also lacked details and was inconsistent, and was also inconsistent with applicant 2’s evidence. Applicant 2’s account of the 2012 detention also lacked details at interview and in her written claims.

    28. For instance, in his arrival interview applicant 1 claimed he was detained and taken to the police camp about 2 days before he departed Sri Lanka (August 2012) whereas applicant 2 stated applicant 1 was taken 3 days before they left Sri Lanka. While not a major discrepancy in itself, I consider their account was significantly different to applicant 1’s statement that he was arrested shortly after moving to Colombo (which was after he married in June 2012). In his interview applicant 1 claimed he was detained 4 or 5 days before his departure. I consider applicant 1’s account about when he was last detained was inconsistent on three occasions. Further, there was a major difference in his account of being detained in June or August 2012. I t is odd that there was such a discrepancy and lack of detail about the most recent and relevant claim such that I consider the applicants were not recounting a lived experience.

17. While the Authority accepted the first applicant’s cousin and uncle were forcibly recruited to the LTTE and had disappeared, it did not accept that he faces harm in the future as a result of this association (CB 382 at [9]).

18. The Authority accepted the second applicant may have witnessed the “rounding up” of Tamils in the 1990s and considered her claims in relation to her brother-in-law’s death and her brother’s detention in 2001 to be plausible.  The Authority also accepted that the second applicant’s brother may have been harassed or monitored during the war, and that he fled to Malaysia.  However, the Authority did not accept that the second applicant faced (or faces) any fear of harm as a result of those incidents (CB 382 at [10]).

19. On the evidence before it, the Authority was not satisfied that the first applicant had a cousin who is a Tamil National Alliance (TNA) MP or that the applicant’s face any harm on account of political opinion or affiliations (CB 382 to 383 at [12]).

    APPLICATION TO THIS COURT

20. These proceedings were commenced by an application to show cause filed on 24 August 2018.  At the time the applicants commenced the proceedings, they were unrepresented.  The proceedings were initially docketed to another Judge of this Court (first primary Judge).  On 17 September 2018 the parties appeared before a Registrar of the Court who made orders appointing the first applicant as the litigation guardian of the third and fourth applicants, being his minor children.  Procedural orders were also made by the Registrar for the preparation of the matter for eventual hearing, with the applicants given leave to file any amended application by 5 November 2018, which date was later extended by orders made on 24 December 2018 (presumably to regularise the late filing of an Amended Application on 12 December 2018, outside of the initial grant of leave).  The proceedings were next to be called-over before a Registrar on 22 October 2019.  On that date, the parties duly attended the callover at which time the proceedings were stood over for further callover before a Registrar, or to be listed for final hearing before the first primary Judge, on a date and place to be advised administratively.  The proceedings were later placed in the central migration docket. 

21. The proceedings remained in the central migration docket until 9 September 2024 on which date they were docketed to me.  I vacated all extant orders of the Registrar and listed the proceedings for hearing before me on 26 November 2024.  The applicants were again granted leave to file any Further Amended Application by 22 October 2024.  The applicants and the first respondent were ordered to file their written submissions 14 and 7 days before the final hearing (respectively).

22. On 13 October 2024, a Further Amended Application was filed for the applicants, it having been prepared by their Counsel (who appeared on a direct access basis), together with written submissions in support thereof.  The parties were each represented by their respective Counsel at hearing, by whom the Court was greatly assisted. 

    Ground of review

23. The sole ground of review before this Court is that the Authority made an error of the kind identified in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17). 

24. In essence, the applicants contend that it was legally unreasonable for the Authority to not exercise its discretion under s 473DC of the Act to obtain new information by interviewing the applicants (though, presumably, specifically the first applicant).

25. This is in circumstances where the applicants say the delegate had (partially) accepted the first applicant’s claim of having been detained in 2012.  The Authority, however, rejected that claim.  The applicants contend that the plurality in ABT17 identified a “brand” of legal unreasonableness in circumstances where there was a failure by the Tribunal to interview the applicant.

26. Specifically, the applicants rely on the part of the delegate’s decision which is extracted at [8] above, in which the delegate noted three inconsistencies in the first applicant’s account of the incident which preceded his departure from Sri Lanka (being the first applicant’s arrest). Specifically, the applicants refer to the delegate noting inconsistencies in relation to the timing of the incident, but nonetheless accepting that the first applicant was detained by the authorities prior to his departure in 2012.

27. The first respondent does not dispute that the Authority has a discretionary power to obtain new information under s 473DC, nor that such power is subject to the implied condition of reasonableness, citing ABT17 at [18] to [20] per Kiefel CJ, Bell, Gagelar and Keane JJ.

28. However, the first respondent does take issue with the contention advanced by the applicants that the delegate had “accepted the applicant's evidence in light of his demeanour”,[1] saying that there is no evidence of this. Rather, the first respondent contends that the part of the delegate’s decision set out at [8] above (and upon which the applicants rely), makes no reference to demeanour nor to any type of assessment of behaviour at the interview.

    [1] Applicants’ written submissions filed 13 October 2024 at [18]

29. The first respondent says that, by example, can be this contrasted with the delegate’s reasoning at CB 308 where it referred to the applicants appearing to “converse easily” in Tamil during the interview and that found that this provided “a level of authenticity to their claim” to be Tamil.  In this regard, the Authority relevantly accepted the applicants’ claim to be Tamil (CB 382 at [9]).  Accordingly, the first respondent submitted that the instant case is not one where the manner in which the applicants presented at interview had any significant bearing on the assessment of credibility, citing see ABT17 (supra) at [22]. The first respondent says that, when read in context, the Authority was not informed by the demeanour or manner of the applicant/s.

    Consideration

30. In ABT17 (supra) the plurality, Kiefel CJ, Bell J, Gageler J (as his Honour then was) and Keane J, observed as follows at [15] (emphasis added):

    The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant’s evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate’s ultimate decision, however “plausible” the appellant’s account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant’s evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant’s responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.

31. The balance of the Court, their Honours Nettle,[2] Gordon and Edelman JJ[3] each writing separately, also found in similar terms. 

    [2] See ABT17 at [69]

    [3] See ABT17 at [112]

32. In particular, at [87], her Honour Gordon J, said the following (emphasis added):

    In affirming a fast track reviewable decision, the Authority is entitled to reject one or more of the delegate’s findings based on demeanour if they are glaringly improbable, or for some other sufficient and identified reason.  However, the Authority will act unreasonably if, without sufficient reason, it rejects an account given by the referred applicant in an interview conducted in person between the referred applicant and the delegate, and which the delegate accepts in making the referred decision. And that is what the Authority did in this matter. It rejected the delegate’s finding that the appellant’s claims were plausible (which was based, at least in part, on the appellant’s demeanour), not on the basis of the review material but on its own assessment of the appellant’s demeanour from an audio recording of that interview and without providing any sufficient reason to depart from, or to reject, that review material. Absent such an analysis and an explication of the reasons for reaching a different conclusion, the Authority was bound to accept those findings of the delegate. Put in different terms, contrary to s 473DB(1), the Authority reviewed the decision by rejecting, or putting to one side, a central part of the review material that had been provided to it and substituting its own findings without any basis for doing so. The decision of the Authority was unreasonable.

33. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17] per Gageler J (as his Honour then was), Keane and Nettle JJ (cited with approval in ABT17 at [5]):

    Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

1. As such, there may be cases in which the delegate does expressly say that demeanour was a factor in reaching a particular finding.  In the present case, it can be accepted that the delegate did not make express reference to demeanour or making in terms which might be inferred to have turned upon demeanour. 

2. In such circumstances, and where the Authority then does have regard to concepts of presentation or demeanour, it is tolerably clear from ABT17,  that the exercise of the Authority’s jurisdiction (conditioned as it is confined within the bounds of reasonableness) is to be informed by whether the Authority ought to have used its power to get and consider new information, in order that it reach such conclusions for itself. 

3. While the delegate had not expressly relied on the demeanour of the applicants, the Authority did so by its conclusion that they were not “recounting a lived experience”(emphasis added).[4] The word “recounting” is significant, because when the finding is read in context (see [28] of the Authority’s decision as extracted at [16] above) it is clear the Authority was referring to the applicant’s giving an account of the incident in question during his interview.

   [4] Ibid.

4. The definition[5] of recount is:

   1.  to relate or narrate; tell in detail; give the facts or particulars of.

   [5] Macquarie Online Dictionary, last accessed 28 August 2025

5. The first respondent says that the Authority found that the applicants’ evidence “lacked details, was inconsistent and embellished” (CB 383 at [18]) which is to say that it was the content of the applicants’ evidence, and not the way in which it was presented, which the Authority found to be of moment.   The aforementioned definition could support that contention.  However, on balance I am satisfied that the Authority was making a finding about the manner in which the account was told because of both the express reference to the interview and to the recounting giving lacking the feel of “lived experience”.  The delegate, who was the interviewer, had expressed no such qualms about the manner in which the applicant had recounted the events and had accepted the claimed 2012 detention despite the inconsistencies. 

6. The Authority “rejected the account given”[6] by the first applicant at the delegate interview, and I conclude it was based on the manner of its telling, which the delegate had accepted in making the referred decision.  It did so by reference to “essentially the same inconsistencies forgiven by the delegate”[7], taken together with its own specific assessment of their demeanour, in circumstances where the delegate had been prepared to accept the account. 

   [6] ABT17 (supra) at [87] per Gordon J

   [7] Applicants’ written submissions filed 13 October 2024 at [18]

7. In the present case, it was the additional reliance by the Authority on matters of demeanour, in departure from the acceptance by the delegate of an account in which inconsistencies had been excused, which formed its concern.  As with ABT17 (supra) at [15] (see [30] above) an interview was the obvious means by which the Authority might seek to resolve that concern about lived experience which, logically, was a unique matter which could not be informed by material other than the applicants’ own accounts. 

8. At [24] and [25] in ABT17, the plurality observed as follows:

   24. The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.

   25.  However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

9. That is also what happened in the specific circumstances of the instant Authority decision. 

10. I am satisfied that by rejecting the applicant’s account in respect of the 2012 detention on the basis that it did, without having invited the first applicant to interview, the Authority failed to undertake its review of the decision of the delegate by failing to comply with the implied condition of reasonableness, which constitutes error: see ABT17 (supra) at [33].

    CONCLUSION

11. In all the specific circumstances of this case, I am satisfied that the applicant has established the error contended for and that it is jurisdictional.  Writs shall issue. 

12. I will hear the parties as to costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       28 August 2025

SCHEDULE OF PARTIES

SYG 2364 of 2018
Applicants
Fourth Applicant:	EKC18