FHF18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 873
•9 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FHF18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 873
File number(s): MLG 3090 of 2018 Judgment of: JUDGE EGAN Date of judgment: 9 June 2025 Catchwords: MIGRATION LAW – whether submissions were ever sent to the Authority on behalf of the applicants – whether there was an explanation for non-receipt by the Authority of the submissions before the Authority handed down its decision – no jurisdictional error established – application dismissed. Legislation: Evidence Act 1995 (Cth), s. 161
Migration Act 1958 (Cth), s. 5H(1), s. 5J, s. 36(a), s. 36(aa)
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 14 May 2025 Date of hearing: 2 April 2025 Place: Brisbane Counsel for the Applicants: Ms E. Hoiberg of Counsel Solicitor for the Applicants: Allens Counsel for the Respondents: Mr J. Byrnes of Counsel Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3090 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHF18
First Applicant
FHH18
Second Applicant
FHI18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 JUNE 2025
IT IS ORDERED THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”
3.The Amended Application for Review filed on 1 May 2025 be dismissed.
4.The First, Second and Third Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
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 EGAN
Introduction
The applicants are a family unit from the eastern province of Sri Lanka. The first and second applicants respectively are husband and wife. Applicants three, four and five are the children of the first and second applicants.
Applicants 1 – 4 left Sri Lanka by boat on 18 May 2013 and arrived in Australia in June 2013 as unauthorised maritime arrivals. The fifth applicant was born in Australia in 2016.
On 27 October 2016, the applicants lodged Safe-Haven Enterprise Visa (SHEV) applications.
On 2 August 2018, a delegate of the Minister refused the visa applications because he was not satisfied that the applicants would face a real chance of persecution or a real risk of significant harm if they were returned to Sri Lanka.
On 7 August 2018, the visa refusal decision was referred to the Immigration Assessment Authority (the Authority) for review.
On 17 September 2018, the Authority affirmed the decision of the delegate.
In its reasons for decision, the Authority at [6] and [7] recorded the applicants’ claims for protection as follows:
6. Applicants 1 and 2 have made separate claims for protection. All applicants rely on each other's claims as members of the same family unit. The children rely only on their membership of their parents' family unit.
7. The applicants' claims can be summarised as follows:
Applicant 1
•Applicant 1 was born a Tamil Hindu in Batticaloa. Since he has been in Australia he converted to Christianity.
•He was forced to leave Sri Lanka because CID suspected him of being linked to the LTTE and were actively pursuing him. In March 2001 CID arrested him under suspicion of helping the LTTE and held him in jail for 18 months and severely tortured him which required hospitalisation. He was released on 9 October 2002. According to his 2017 statement authorities discovered he had been using his vehicle to assist the LTTE and buying them goods. He had no choice to help the LTTE, as he would have been harmed if he did not help the LTTE. However, according to the entry interview applicant 1’s friend informed authorities that he had a cyanide pill and grenade or small bombs, so was arrested and detained for 18 months, but the charges were withdrawn and one was rejected. According to his protection interview he was falsely charged with possession of weapons.
•Applicant 1 he applied to the Australian government for a humanitarian visa on 17 November 2008 (at interview he thought it was in 2001), but it was refused
•In 2009, while he was a driver he was kidnapped and tortured by Karuna supporters for ransom, which his father paid for his release. A newspaper report of it was provided.
•In 2010 and 2011 he was a candidate for parliamentary election but was not successful.
•On 5 December 2012 while away working, CID came looking for him in an unmarked white van. His wife told him. According to his 2017 statement applicant 1 knew it was CID because his neighbour was taken away by the same van without a registration number. He was not certain how they found him, but his friends suspected him of seeking to revive the 1-1-TE and informed CID and may have leaked that he had been corresponding with other countries. He suspected he had been under CID surveillance for many years. After the white van came to the home, he went to a friend's house and brought his family there. According to his entry interview, he assumed the people in the white van were looking for him as he told friends that he wrote letters to Australia and Switzerland and got replies and planned to leave the country, so they must have thought he had a LTTE connection.
•Upon return to Sri Lanka, applicant 1 will be subjected to death, arbitrary imprisonment and torture. The change in government will not reduce his chance of harm. There are a lot of army camps around and he will be captured and taken to the camps.
•Buddhist monks rule in their area and are declaring that no Tamils can stay in the area and the land belongs to them.
•In post interview submissions, it was submitted applicant l's past LTTE association, arrest, charge and detention as a result of these connections, previous kidnapping and torture experience by Karuna supporters, candidacy in state and federal elections and significant mental and physical health concerns put him at risk of serious harm. A letter from Restore Psychology dated 21 April 2018 was provided. He was also receiving treatment for rib fractures. It was submitted he suffered claustrophobia leading to panic attacks and as a result, even if detained for a short period it would amount to significant harm and the effects of his past torture and trauma was likely to exacerbate the risk of harm upon return.
•It was submitted applicant l's LTTE association and wealth were likely to be cumulative factors which resulted in his profile becoming more prominent target for Karuna group and kidnap. It was submitted his family suggested he run for election as a strategy to gain some protection from further harm by authorities as the authorities would require clear and prominent reasons to arrest or cause any harm against him.
•It was submitted the cumulative effect of the applicants' ethnicity, from Eastern province, imputed political opinion as a past LTTE sympathizer or supporter and profile as a failed asylum seekers gave rise to a real chance of persecution.
At [8] of its reasons, the Authority set out what constituted a well-founded fear of persecution under the provisions of s. 5J of the Migration Act 1958 (Cth) (the Act).
At [83] of its reasons, the Authority found that the applicants did not meet the definition of refugee under s. 5H(1) of the Act, and that no protection obligations were owed to the applicants under s. 36(2)(a) of the Act.
At [94] of its reasons, the Authority found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka, that there was a real risk that the applicants would suffer significant harm so as to give rise to complimentary protection obligations under s. 36(2)(aa) of the Act.
On 15 October 2018, the applicants filed an Originating Application for Review of the decision of the Authority.
Grounds of Review
At the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 1 May 2024, the grounds of which were as follows:
1.The Second Respondent committed jurisdictional error by failing to exercise the procedural duty imposed on it by the s. 473DD of the Migration Act 1958 (Cth) to assess the new information given by the Applicants by email dated 16 September 2018 against the criteria in section 473DD. This error was material.
2.The Second Respondent committed jurisdictional error by failing to consider the submissions given to it on behalf of the First and Second Applicants by email dated 16 September 2018. This error was material.
It was submitted on behalf of the applicants that whether or not submissions were sent to the Authority by email on behalf of the applicants on 16 September 2018 was a question of fact for determination by the Court. Reliance was placed upon the provisions of s. 161 of the Evidence Act 1995 (Cth) (EA) which relevantly provided as follows:
EVIDENCE ACT 1995 - SECT 161
Electronic communications
(1) If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d) was received at the destination to which it appears from the document to have been sent; and
(e) if it appears from the document that the sending of the communication concluded at a particular time--was received at that destination at that time.
(2) A provision of subsection (1) does not apply if:
(a) the proceeding relates to a contract; and
(b) all the parties to the proceeding are parties to the contract; and
(c) the provision is inconsistent with a term of the contract.
Note: Section 182 gives this section a wider application in relation to Commonwealth records.
It was submitted on behalf of the first respondent that on the critical question as to whether or not an email of 16 September 2018 was ever sent on behalf of the applicants to the Authority before it made its decision on 17 September 2018, the Court ought to find that such alleged email was not received by the Authority. As a consequence of that submission, the first respondent’s position was that the Amended Application ought to be dismissed with costs.
At [4] of its written submissions, the first respondent accepted that if the Court found that the alleged email had been sent and received, there would have been jurisdictional error on the part of the Authority.
Likewise, Counsel for the applicant at Transcript p. 37 [1] conceded that if the Authority had not received the 16 September 2018 email, then it could not have been in error for failing to consider it.
[1] Exhibit 4.
The Evidence before the Court
As at 16 September 2018, the lawyer representing the applicants was one Kajaliny Ranjith. At [2] – [21] of her affidavit filed on 21 June 2024, Ms Ranjith deposed as follows:
2. I am the former solicitor for the Applicants and acted as their representative before the Immigration Assessment Authority (IAA) on the referral of their applications for protection visas.
3. We prepared an outline of submission for matter LAA 18/05442 and IAA 18/05440. We also received a support letter from Restore Psychology and documents that were in the Sinhalese language.
4. I have been requested to clarify some correspondence that was sent in September 2018.
5. During the time in question, I used two email addresses. I confirm that the email address ‘[email protected]' belongs to me. 'Kaj [email protected]' is my personal email. When I first commenced my own practice as a solicitor, I used the email address '[email protected]·. However, once I became more established, I decided I needed to move to a more official email address. At that point I opened an email account at the address '[email protected]' .
6. I no longer use the email address ‘[email protected]', although I still have access to it.
7. I have been shown pages I to 18 of the Supplementary Couri Book in this matter, which appears to contain an email I sent to the lAA on 19 September 2018 and its attachments.
8.I have in my in box an email dated 20 September 2018 from the IAA, which is a response to my email dated 19 September 2018. Attached hereto and marked 'KR1' is a copy of the email chain.
9. I can see from the email chain that on 19 September 2018, there appears to be an email I forwarded to the IAA dated 16 September 2018.
10. I completed a search of my emails on Monday 29 April and on Friday 26 April 2024, however I am now unable to locate the original emails of both the 16 September 2018 and 19 September 20 18. It appears that my sent items for the email address '[email protected]' from the period July to September 20 18 are missing. I believe that this is due to a technical issue.
l I. I have made several attempts to gain access to the emails, however l have not been able to locate those pa1ticular email s, including the one that the IAA responded to.
12. Given the passage of time, I cannot recall the events surrounding the emails, but the email chain at exhibit 'KR1’ indicates to me that the email sent to the lAA on the 19 September 2018 was received by them, as I received a response on the 20 September 20 18.
13. My email to the IAA dated 19 September 20 18 states "we confirm we have sent through the attached documentation". That suggests to me that, when I sent the email to the JAA on 19 September 2018, I would have forwarded them the earlier email l had sent on 16 September 2018.
14. The email dated 19 September 2018 that appears at page I of the Supplementary Court Book is sent from the email address ' [email protected]'. This is consistent with my recollection that, by this time, I had set up that email address and was using it as my main work email address, though I was still receiving some work emails to my iCloud email account.
15. The email dated Sunday 16 September 20 18 at the bottom of exhibit 'KR1', describes the sender as 'Kajaliny Ranjith’ but does not list an email address. I believe the email would likely have been sent from the email address ' [email protected]'. This is because the name associated with my iCloud email address is Kajaliny Ranjithkumar. 1 have reviewed emails in the sent items of my Outlook email and found other examples where I had forwarded or replied to a previous email that I had sent in which my name in the original email also appears as 'Kajaliny Ranjith'. Exhibit ‘KR2’ is an example of one of those emails (with the recipient's details redacted).
16. I have also conducted a search of my iCloud email account (which I still use) and cannot locate an email sent to the IAA on 16 September 20 18 in this matter.
17. Given the passage of time I do not now recall whether l received any ' bounce back' or undeliverable notification from the IAA on or around 16 September 2018. My general practice as a solicitor is that, if I receive a notification that my email has not been delivered, I will resend the email or otherwise contact the intended recipient about it.
18. The email I sent on 19 September 2018 does not contain the prefix "FW :" in the subject line. I am unaware as to why that is the case.
19. I have also been shown pages 28 to 30 of the Supplementary Court Book, which is an email from the IAA to me dated 24 September 2018. I do not recall if I responded to this email.
20. l have also been shown the file note prepared by the IAA which records a conversation in which XXXX allegedly told the IAA that I advised XXXX that I did not send the documents. I do not recall telling XXXX that I did not send the documents to the IAA.
21. I sent a number of emails to the IAA in and around September 20 18 on behalf of a number of different clients. 1 was not made aware of any other issue with the IAA receiving any other emails from me.
Annexures KR-1 and KR-2 to Ms Ranjith’s affidavit are as follows:
KR-1:
RE: IAA18/05442 and IAA18/05440 [SEC=UNCLASSIFIED]
Immigration Assessment Authority <[email protected]>
Thu 20/09/2018 5:29 PM
To: 'Kajaliny Ranjith' <[email protected]>
Dear Kajaliny Ranjithkumar,
I refer to your correspondence of 19 September 2018.
The Immigration Assessment Authority (IAA) has no record of having received correspondence from you at the IAA mailbox {[email protected]) on 16 September 2018 in relation to these matters.
Yours sincerely
Immigration Assessment Authority
From: Kajaliny Ranjith [mailto:[email protected]
Sent: Wednesday, 19 September 2018 2:15 PM
To: Immigration Assessment Authority
Subject: IAA18/05442 and IAA18/05440
Dear Sir/ Madam
We refer to the above-mentioned matter and note that in the decision it records that no further information was provided.
We confirm that we have send through the attached documentation. Please confirm whether you have received the same, as the client is very distressed about the decision.
We look forward to hearing from you.
Regards
Kajaliny Ranjith
BA.LLB Grad Dip in Law, LLM (Commercial Litigation)
Lawyer & Registered Migration Agent: MARN 0901759
T: 9028 8924
M:0412722121
This email is confidential and intended solely for the use of the individual to whom it is addressed. If you are not the intended recipient, you have received this email in error and any use, dissemination, forwarding, printing or copying of this email is strictly prohibited. If you have received this email in error, please notify Kajaliny Ranjith Legal on 0412722121 and delete it from your computer.
From: Kajaliny Ranjith
Sent: Sunday, 16 September 2018 7:58 PM
To: 'Immigration Assessment Authority' <[email protected]>
Subject: IAA18/05442 and IAA18/05440
Good afternoon
We refer to the above-mentioned application and herewith attach the following for your attention.
•Submission for XXXX
•Submission for XXXX
•Support letter from Restore Psychology
•Court Document (in Sinha la will be providing a translated document)
We look forward to hearing from you.
Kajaliny Ranjith
BA.LLB Grad Dip in Law, LLM (Commercial Litigation)
Lawyer & Registered Migration Agent: MARN 0901759
T: 9028 8924
M:0412722121
This email is confidential and intended solely for the use of the individual to whom it is addressed. If you are not the intended recipient, you have received this email in error and any use, dissemination, forwarding, printing or copying of this email is strictly prohibited. If you have received this email in error, please notify Kajaliny Ranjith Legal on 0412722121 and delete it from your computer.
Important: This message and any attachments may contain confidential or legally privileged information. If the message was sent to you by mistake, please delete all copies and notify the AAT by return email. Any review, retransmission, dissemination or other use of this information by persons or entities other than the intended recipient is prohibited and may attract criminal penalties.
KR-2:
From: Kajaliny Ranjith <[email protected]>
Sent: Friday 15 June 2018 4:11PM
To: ####
Subject: RE: MLG 1881/2016 CU 16 v MHA & Ors
Attachments: CU16 amended FCC app.docx
Dear Siran
We refer to our email below. We have also attached herewith our draft amended application for your attention.
Please confirm whether you client agrees with the adjournment.
I look forward hearing from you.
Regards
Kaj
From: Kajaliny Ranjith
Sent: Thursday, 14 June 2018 9:04 AM
To: ####
Subject: MLG 1881/2016 CU 16 v MHA & Ors
Good Morning Siran
Further to our email of 13 June 2018, please find attached a sealed Notice of address for Service.
We look forward to hearing from you.
Regards
Kajaliny Ranjith
BA.LLB Grad Dip in Law, LLM (Commercial Litigation)
Lawyer & Registered Migration Agent: MARN 0901759
T: 9028 8924
M: 0412722121
This email is confidential and intended solely for the use of the individual to whom it is addressed. If you are not the intended recipient, you have received th is email in error and any use, dissemination, forwarding, printing or copying of this email is strictly prohibited. If you have received this email in error, please notify Kajaliny Ranjith Legal on 0412722121 and delete it from your computer.
In her examination in chief, Ms Ranjith affirmed that the contents of her affidavit were true and correct to the best of her knowledge and belief. Ms Ranjith was then cross-examined by Byrnes of Counsel. Ms Ranjith gave evidence that she could not exactly recall what had occurred between 16 September 2018 and 19 September 2018. The relevant part of the transcript was as follows: [2]
[2] See Exhibit 5 – Transcript – T p. 6.39 – 7.24.
MR BYRNES: So I think, Ms Ranjith, you were just explaining your answer to my question, which was – I was asking whether or not you have an independent recollection of the events surrounding the emails?‑‑‑I do. Yes, I do recall about the emails. Yes.
Okay. And at paragraph 13, you say – you refer to your email of 19 September 2018 and then in the next line, you said:
That suggests to me when I send the email to the IAA on 19 September 2018 I would have forwarded them the earlier email I had sent on 16 September 2018.
Do you see that?‑‑‑Yes.
Now, using – it seems to me like – well, I will rephrase that. When you say, “That suggests to me”, are you reconstructing what happened based on the documents rather than applying your independent recollection?‑‑‑Yes, correct. So I – when I looked at the documents – well, after I was contacted by the applicant’s legal representative, and I went back and checked my emails, that’s what this affidavit is based on. I cannot – it was such a long, long time ago. I’ve had many matters in between. I also had different personal circumstances that has changed and caused me to move back to the Northern Territory. I can’t tell you exactly what has happened between 16 September and 19 September 2018.
Right. So you do not have an independent recollection of sending the email of 16 September 2018; is that right?‑‑‑Look, are you asking me how I’m – whether I remember now?
Yes?‑‑‑Whether I did? I can’t remember. It was back in 2018. Looking at the email chain, I probably did. But ‑ ‑ ‑
HIS HONOUR: I’m sorry. Probably did what? Probably did what?‑‑‑Probably did send the email on 16 September.
During the course of further careful and clever cross-examination by Mr Byrnes during the hearing, an email was sent by Mr Byrnes’ instructor, Ms White of Sparke Helmore Lawyers, to Counsel for the applicant, to the associate, and to the applicant who was giving evidence remotely via Microsoft Teams. That email, with attachments, was marked Exhibit 4.
After Ms Ranjith had received Exhibit 4, the relevant parts of her cross examination by Mr Byrnes were as follows: [3]
[3] See T p. 46.20 – 55.40.
HIS HONOUR: Yes. All right.
Have you received that, Ms Ranjith?‑‑‑I haven’t got the ‑ ‑ ‑
Beg your pardon?‑‑‑No, not yet, your Honour. I have not received it, your Honour. If it could be – I can check my email address again.
Yes. Could you please?‑‑‑No, I’ve got it. Just came through. I’ve received the email now.
All right. Thank you. Yes, Mr Byrnes.
MR BYRNES: Ms Ranjith, can you open that email, please?‑‑‑Yes.
You see it’s an electronic copy of the email of 19 September 2018 at 2.15 pm. Do you see that?
HIS HONOUR: Well ‑ ‑ ‑
THE WITNESS: Yes.
HIS HONOUR: You really should be asking her to open the attachment.
MR BYRNES: I’m coming to that, your Honour. I just want to verify this is her. She accepts this as the email, first.
HIS HONOUR: But it’s an attachment.
MR BYRNES: Yes.
HIS HONOUR: The email is sent ‑ ‑
MR BYRNES: Have you – well, Ms – I will rephrase that.
Ms Ranjith, the email you received, I understand, has an attached email to it. Can you open the attachment, please?‑‑‑Yes, I have.
Yes. Now, you see that that is an email, electronic copy of an email you sent to the Immigration Assessment Authority of 19 September 2018 at 2.15 pm. Do you see that?‑‑‑Yes.
And you accept this as an email that you sent on 19 September 2018?‑‑‑Yes.
Now, you see there are four attachments to this email. The first attachment from the left is called XXXX Appeal Support Letter 12.9.18 PDF. Can you please open that?‑‑‑Yes. Now, do you have Adobe Acrobat, or do you have Chrome that you’re opening this in?‑‑‑Adobe Acrobat.
So can you open the document properties. I think you hit right-click on mouse, and so go to “document properties”?
HIS HONOUR: Sorry. Mr Byrnes, do you want me to do that as well?
MR BYRNES: Yes, your Honour.
HIS HONOUR: And Ms Hoiberg.
MR BYRNES: Yes.
THE WITNESS: Yes. No, I can’t see “document property”.
HIS HONOUR: Excuse me for a minute.
THE WITNESS: I can’t see “document property” on this.
MR BYRNES: Have you tried right-clicking? When I’m in Adobe Acrobat, if I right-click, there’s a box that opens up, and the bottom item is document properties. Can you do that?‑‑‑Yes.
Is your Honour following as well?
HIS HONOUR: I have that “document properties” as the second-last category.
MR BYRNES: Okay. Okay. Yes.
And, Ms Ranjith, before you, you should see there’s – it has “document properties”, and about midway down it has a created line of 12 September 2018?
HIS HONOUR: Just, Mr Byrnes ‑ ‑ ‑
THE WITNESS: Yes.
HIS HONOUR: ‑ ‑ ‑ have you asked the witness to click on “document properties”?
MR BYRNES: Yes, I have.
HIS HONOUR: Have you clicked onto “document properties”, witness? Witness?‑‑‑Yes.
Left-click or right-click?‑‑‑Yes, I have. Right-click.
Do you want me to left-click, or right-click ‑ ‑ ‑
MR BYRNES: Left-click on “document properties”.
HIS HONOUR: Right. Yes.
MR BYRNES: Now, so we’re all on the same page. There should be a dialogue box that’s headed Document Properties on the screen in front of you. Is that right?
HIS HONOUR: Yes.
THE WITNESS: Correct.
HIS HONOUR: Well, before you go on, I don’t know where that is. Document Properties, it’s titled, the page – once one left-clicks on “document properties”, the page comes up with “document properties” on the top left. Is that right?
MR BYRNES: Yours must be a little bit different. Mine, there’s a – yes, it does on my instructing solicitor’s, but it’s the same thing.
So in the middle of that box, can you see an entry called “created”, Mrs Ranjith. Can you see that?‑‑‑Yes.
And it has got 12 September 2018, 10.54, and then it’s 50 am?‑‑‑Yes.
And “modified” has the same time underneath that. Do you accept that?‑‑‑Yes.
So that means this document was created and last modified 12 September 2018. You accept that?‑‑‑Yes.
HIS HONOUR: That’s the attachment, the first attachment.
MR BYRNES: That is the first attachment.
Mrs Ranjith, can you open the second attachment called Submission XXXX?
HIS HONOUR: Well, what will she do with the first attachment?
MR BYRNES: You may close that, Mrs Ranjith.
HIS HONOUR: All right.
THE WITNESS: Yes.
MR BYRNES: So you’ve opened that with Adobe Acrobat?‑‑‑Yes.
Can you do the same thing, right-click and then left-click on “document properties”, please?‑‑‑Yes.
Do you have a table in front of you, the information of “document properties”, and it has certain information following it? Do you have that in front of you?‑‑‑Yes.
Your Honour, you’re following as well.
You see the author there, that’s you as the author. You accept that?‑‑‑Yes.
When you look at “created”, it has 18 September 2018 at 8.58 and 39 pm. Do you see that?‑‑‑Yes.
Okay. And then it has modified 18 September 2018, 8.58 at 43 pm. Do you see that?‑‑‑Yes.
So this attachment was created on 18 September 2018. Do you accept that?‑‑‑No. This forwarded attachment?
The attachment we’re talking about. It’s created on 18 September 2018.
HIS HONOUR: Mr Byrnes, before you go on.
Ms Ranjith, could you leave the Teams meeting just for about five minutes, please? There’s something that has arisen.
THE WITNESS: Thank you, your Honour.
HIS HONOUR: Could you do that now?
<THE WITNESS WITHDREW [12.50 pm]
HIS HONOUR: Mr Byrnes, I’m just wondering whether the witness should be warned?
MR BYRNES: Yes. Yes. Yes ‑ ‑ ‑
HIS HONOUR: Ms Hoiberg?
MS HOIBERG: Yes. I have no objection to that course.
HIS HONOUR: I think it’s an appropriate course, and the warning should be – are you going to put to her various things that have a grave consequence?
MR BYRNES: Potentially, yes.
HIS HONOUR: I think she should be warned.
MR BYRNES: I’m content for your Honour to issue that warning.
HIS HONOUR: Well, I will give the warning.
MR BYRNES: Yes.
HIS HONOUR: But the form of the warning will be that she should be advised that should she consider that any evidence that she may give may tend to incriminate her, then she’s not going to be forced to answer any further questions in that regard.
MR BYRNES: Yes.
HIS HONOUR: Is that right?
MR BYRNES: I would have to check, but I’m content with that as a warning.
HIS HONOUR: Well, I think that’s the way to go. It’s a submission. Yes. Just bear with me. Yes. Could you get her back on?
<KAJALINY RANJITH, RECALLED [12.53 pm]
HIS HONOUR: Yes. Ms Ranjith, can you hear me?‑‑‑Yes. Yes, I can.
Ms Ranjith, I’m going to give you a warning that you are not required to answer any question which may tend to incriminate you in a criminal or fraudulent sense?‑‑‑Yes, your Honour.
You may claim privilege against self-incrimination. So with that warning having been given, do you understand the nature of that warning?‑‑‑Yes, I do understand the nature of the warning, your Honour. I do crimes.
And, Ms Ranjith, in the light of that warning, are you prepared to answer any further questions from Mr Byrnes?‑‑‑Yes.
You’re prepared to do that?‑‑‑Yes, I am.
All right. Mr Byrnes.
MR BYRNES: Thank you, your Honour.
<CROSS-EXAMINATION BY MR BYRNES [12.54 pm]
MR BYRNES: So, Mrs Ranjith, I was asking you about the Submission XXXX, and the created and modified, and I think your answer was you accepted that this document had been created and modified on 18 September 2018. That’s right?
HIS HONOUR: Just excuse me.
THE WITNESS: No. I did not accept that I created and modified it on that day. I may have looked at it on the 18th. I certainly drafted, and it was created on a different day.
MR BYRNES: So you’re saying this is – there’s something – you’re disagreeing with what – the information contained in the document properties?‑‑‑I am not very – a technical person. So I’m not sure what this actually represents, but I know that we drafted the submission at a much earlier stage, and I don’t know, it may have been modified on that day, but created definitely, it was in a – well, like, prior to that.
You may close that document now. Can you open the next attachment, which is Submission XXXX?‑‑‑Yes.
Again, if you’re in Adobe, if you go right-click, go to “document properties”. So do you have that up?‑‑‑Yes.
There you see you are the author again. You accept that?‑‑‑Yes.
Again, you see the “created” is 18 September 2018 at 8.58 and ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ pm. Yes. You accept that. “Modified” is 18 September 2018, 8.58 and 16 pm. You accept that?‑‑‑Yes.
So that means that this document was created and modified at those times. Do you accept that?‑‑‑I don’t accept that.
You do, or do not accept that?‑‑‑I do not accept that.
Right?‑‑‑I don’t know whether it was modified on that day, but it was created at an earlier stage.
But so why do you accept it, then? What ‑ ‑ ‑?‑‑‑Why? Because I know that I drafted the documents at a much earlier stage. You’re asking when it was created, and it was created much earlier. And, also, I’m just looking at the time of these emails. It says, “Wednesday, 9 September,” and 1.45, the email that you forwarded.
HIS HONOUR: .....
THE WITNESS: Whereas on the update, like, on my affidavit, but also in the updated court book it says “2.15 pm”, the same email that I supposed – I mean, I have sent.
HIS HONOUR: I’m sorry. I didn’t understand what you just said. Could you repeat that, please?‑‑‑So the email that has been sent to me as an attachment, which date is Wednesday, 19 September 2018.
Okay. That’s the same date and time?‑‑‑That’s the same date, but the timing, it says “1.45 pm”.
It says “2.15 pm” on mine. Where do you say ‑ ‑ ‑?‑‑‑My one says “one” – maybe because I opened it, I’m in half an hour behind, and it opens at the current timing for me.
That’s not the date that Mr Byrnes was taking you to. You see the email ‑ ‑ ‑?‑‑‑The 19th of ‑ ‑ ‑
See the email with the attachments, the four attachments, under your email address. See that?‑‑‑”2.15”, yes.
To the right-hand side it says, “Wednesday, 19 September 2018,” sent at 2.15 pm, which is the same ‑ ‑ ‑?‑‑‑No. So the attached email that I received, it probably opened to my Darwin timing, which says “1.45”, so it’s ‑ ‑ ‑
Can you explain things to her, please, Mr Byrnes.
MR BYRNES: Well, Mrs Ranjith, what I see in the court, and I think his Honour sees as well, is the email says in the date “Wednesday, 19 September 2018 at 2.15pm.” As I understand it, yours, when you open that up, says, “Wednesday, 19 September 2018, 1.45 pm.” Is that the difference?‑‑‑That is the difference, but I’ve figured it may be because of the time difference between Northern Territory and Brisbane.
And that’s the extent of the issue you wanted to raise?
HIS HONOUR: How can that be ‑ ‑ ‑
THE WITNESS: No, no. I – I just thought, initially, that it was something else, but I figured out while I was talking that that would be the issue. So I withdraw that.
HIS HONOUR: How can it be? It’s an electronic copy, Mr Byrnes. It’s like a hard copy document.
MR BYRNES: I can’t answer that, your Honour. Whenever I see it, it’s “2.15.” So I’m not sure how that is possible.
Now, Mrs Ranjith, can you open the fourth attachment to that email, called Court Document?‑‑‑Yes. Yes.
And, again, can you right-click and then click on document properties, please?‑‑‑Yes.
You see that this document says created 5 August 2018, 10.51.25 am. Do you see that?‑‑‑Yes.
Modified 12 September 2018, 8.48 at 4.44 pm. Do you see that?‑‑‑Yes.
So do you accept that this document was created and modified at those times?‑‑‑I can’t comment on that. I don’t know.
Do you have any reason to disagree ‑ ‑ ‑?‑‑‑But this is not a document that I would have – well, this is not a document that I could have modified. It’s a PDF that has been scanned in.
But you don’t have any reason to disagree with what that says?‑‑‑I – I – I really don’t know what it actually means when it says “modified” or “created”. Create the – I know literally what it means, but this is not a document I could have ever modified.
Is there a reason that you’re taking this issue, you’re not just accepting what the face of the document says and the document properties?‑‑‑I mean, the – the basis document says that, hence, I agree with that. I’m not disagreeing with that.
Okay. Now, back to the email of 19 September 2018. I asked you about this a little while ‑ ‑ ‑
HIS HONOUR: So which one?
MR BYRNES: This is the electronic email that I’m asking questions about, your Honour.
HIS HONOUR: Yes.
MR BYRNES: So, Mrs Ranjith, this is the email that you sent forwarding your email of 16 September, or apparently forwarding your email of 16 September 2018. I think that was your reference before?‑‑‑Yes.
And you see in the subject line of 16 September 2018, it doesn’t include the letters “FW”?‑‑‑Yes.
Now, before, I think there was some suggestion that you sometimes remove the letters “FW” to make it neater, or something like that. Do you remember that evidence?‑‑‑Yes.
Now, I suggest to you that you would not have removed the “FW” when sending this email, because the very purpose of sending the 19 September 2018 email was to show that you had sent the earlier email.
MS HOIBERG: Sorry, your Honour. I object to this line of questioning, because Ms Ranjith has already said she doesn’t remember these events. So my learned friend is essentially asking her to speculate about something she has no actual recollection of.
HIS HONOUR: Well, that’s a matter for submissions ‑ ‑ ‑
MR BYRNES: Provided there’s no issue taken with me putting that submission, I’m content to proceed on that basis.
Now, Mrs Ranjith, I think earlier your evidence was that you had – or you assumed that you had merely forwarded the email of 16 September 2018 without reattaching the attachments. Do you remember that?‑‑‑Yes.
So that being the case, with the submissions that are post-dating the 16 September 2018 email – I will rephrase that. The information I took you to within document properties of the submissions XXXX and submission XXXX, you accept that, on the face of it, that post-dates your email of 16 September 2018. Do you accept that?‑‑‑Yes.
In circumstances where you say that you would have just merely forwarded the email of 16 September 2018, it cannot possibly be the case that you actually created and sent those submissions in your email of 16 September 2018?‑‑‑I can’t comment on that.
Do you understand the point that I’m making, though? That you cannot have sent the 16 September 2018 email with those attachments?‑‑‑I can’t answer the question.
Why?‑‑‑Because I – from this email all I can – from this email I can say is that there’s an email that has been sent on 16 September and there’s an email that shows that I forwarded that email on 19 September. Why there is a date difference, I can’t comment on that. I don’t know.
Is it because, in fact, you did not send the email of 16 September 2018?‑‑‑I can’t answer the question.
Why?‑‑‑I would have sent it because it clearly shows that I’ve forwarded that.
HIS HONOUR: That you what, sorry?‑‑‑I would have sent that email. It shows that I forwarded that email.
Where does it show that it’s forwarded?‑‑‑Oh, no, it doesn’t say in the email that I forwarded it. I just – in my email on the 19th I put, “I refer to the above-mentioned matter. I know that this is record and that no other information was provided. We confirm that we have sent through the attached documentation. Please confirm whether you’ve received the same as the client is very distressed.” So I don’t – it doesn’t say that it’s forwarded.
MR BYRNES: Was it the case that you actually just sent 19 September 2018 with those further attachments? You didn’t actually send the 16 September ‑ ‑ ‑?‑‑‑The attachments are there.
I will rephrase it, because I think there was a bit of crossover. Was it the case that you created 19 September 2018 email with those further attachments and you did not send 16 September 2018 email?‑‑‑I – I – I will disagree that I did not send 16 September email. The email shows that – that I forwarded that. But it doesn’t show this on this email.
I don’t have any further questions.
HIS HONOUR: Yes. Any re-examination, Ms Hoiberg?
MS HOIBERG: No, your Honour. Might the witness be excused?
HIS HONOUR: Yes. You’re excused, Ms Ranjith?‑‑‑Thanks, your Honour.
When dealing with the curious date “Created” and date “Modified” anomalies on the “Document Properties” print outs for the second and third attachments to the Ranjith email of 19 September 2018 sent by her to the Immigration Assessment Authority – where each of such print outs recorded that each of the submission documents had been created after the sending of the alleged email on 16 September 2018 – Counsel for the applicant made the following written submissions:
33(c) during cross-examination of Ms Ranjith, she was taken to the electronic copy of her email to the IAA on 19 September 2018 (Exhibit 4). It was put to her that two of the attachments to that email, being “Submission XXXX.pdf” and “Submission XXXX.pdf” contained document properties indicating that the documents were created and modified after 16 September 2018. Ms Ranjith noted she was “not a very technical person” and she was not sure what the document properties represented. However, she remained steadfast in cross-examination that she had created the submissions “much earlier”.21 It is submitted that, without supporting evidence of what the “document properties” mean and when a PDF document is taken to be “created” and “modified”, this cross-examination does not assist the Minister. In particular, it does not prove that Ms Ranjith did not send the 16 September 2018 email. In response to this line of questioning from the Minister, Ms Ranjith maintained in cross-examination that she sent the 16 September 2018 email, because it is shown in her later email to the IAA on 19 September 2018. Her evidence on this topic should be preferred, particularly as there is no evidence about the document properties which is capable of positively demonstrating that her evidence on this topic is incorrect.
33(ca)the Minister submits that Ms Ranjith was willing to change her responses when it did not suit her position, which is said to give rise to concerns about her credibility: RS [31I]. The Minister submits this is based on the fact that Ms Ranjith accepted the document properties for the first attachment but not for the other attachments. However, when Ms Ranjith’s evidence is properly construed, there was no “change of position”. Ms Ranjith accepted the document properties for the attachment titled “XXX Appeal Support Letter 12.9.18.PDF”, as having been created and modified on 12 September 2018.23 Ms Ranjith appears to have held this view because the document was “scanned in” and not a document she was able to modify.24 However, Ms Ranjith was adamant that she had created (she used the word “drafted” multiple times) the submissions to the IAA prior to 18 September 2018. It is plausible that Ms Ranjith had in mind that she had drafted the submissions in a different program (such as Microsoft Word) at an earlier stage, before they were converted into a PDF document. This point was never clarified with her in cross-examination even after Ms Ranjith explained she did not know what the “created” and “modified” dates meant in the PDF documents. It is not something that impacts adversely upon Ms Ranjith’s credibility. Nor is it “troubling”, as the Minister submits at RS [31J]. If anything, the force by which Ms Ranjith gave her answers to these questions, particularly after she had been advised of her right to claim privilege against self-incrimination, indicates the strength of her conviction that she had drafted the submissions to the IAA prior to the dates listed in the document properties for the PDF attachments.
The Court does not accept such submissions. First, the Court finds as implausible the explanation given by Ms Ranjith at T p. 11.1 – .20 that on her email of 19 September 2018 sent to the Immigration Assessment Authority, that being an email which was said to be forwarding to the Authority the alleged email of 16 September 2018, she would have removed “FW:” “ … just to make it look a bit neater in the subject line and I’m forwarding it to someone else, for example. It just depends on who I’m emailing and who I’m sending the email to.” When forwarding a prior email to an email address, the Letter “FW:” invariably appear on the forwarding email. In this case, Ms Ranjith was purporting to forward the alleged email of 16 September 2018 to the same addressee on 19 September 2018, so there was no reason for her to remove “FW:” before the forwarding email of 19 September 2018 was sent.
Second, the strong inference to be drawn from an examination of the attached Document Properties print outs to Exhibit 4, in respect of the attached written submissions for each of the applicants, was that those submissions were both created on 18 September 2018, and not on or before 16 September 2018. The Court finds that the applicants have not established that such statements were in existence and therefore able to be sent as email attachments to the Authority on 16 September 2018.
The Court is not satisfied that any email dated 16 September 2018 was ever sent by Ms Ranjith to the Authority as deposed to by her. She gave evidence that she had experienced problems with her computer at about the relevant time. Perhaps that is the reason why she swore that she had sent the email on 16 September 2018.
The presumption of receipt of an electronic communication as set out in s. 161 of the Evidence Act 1995 (Cth) has been rebutted. The Court clearly has real doubt about whether any email was received before 17 September 2018 when the Authority made its decision. The uncontradicted evidence of Ms Cannavo about non-receipt by the Authority of the email was unimpeachable.
The applicants have failed to establish jurisdictional error on the part of the Authority.
The grounds of review, related as they are, are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 June 2025
SCHEDULE OF PARTIES
MLG 3090 of 2018 Applicants
Fourth Applicant:
FHJ18
Fifth Applicant:
FHG18
0
0
2