FUJ17 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 349
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUJ17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 349
File number(s): SYG 4052 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 13 March 2025 Catchwords: MIGRATION – protection visa – application for judicial review of a decision of the Immigration Assessment Authority – whether decision was affected by an unreasonable failure to consider inviting further response or evidence pursuant to s.473DC or otherwise legally unreasonable – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.5H, 36, 65, 473BA, 473DA, 473DB, 473DC, 473DD, 473EA Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia (1995) 184 CLR 163
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 17 February 2025 Place: Sydney Solicitor for the Applicant: Sydney West Legal and Migration Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 4052 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUJ17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.The application as further amended on 7 November 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $7,180.
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 Mansini
The Applicant is a citizen of Sri Lanka who sought protection on the basis of claims to fear that, on return, harm would be occasioned because of his past political campaigning, lack of protection as a Tamil and as an asylum-seeker who fled Sri Lanka illegally.
The Applicant now seeks judicial review of a tribunal decision to affirm the administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
The Applicant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu faith.
On 26 September 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 10 February 2017, the Applicant applied to the First Respondent for a safe haven enterprise (subclass 790) visa (this protection visa). Attachments to the protection visa application included a statement of claims and a letter purporting to be from a member of Parliament in Batticaloa.
On 1 May 2017, a delegate of the Minister refused to grant the protection visa.
On 27 November 2017, the Immigration Assessment Authority (as it then was) (Authority) affirmed the delegate’s decision on review.
The Authority’s decision
The decision maker’s reasons commenced with a summary of the Applicant’s claims for protection: at [5].
The Authority’s refugee assessment
The Authority accepted certain of the Applicant’s claims, including that he is a Sri Lankan citizen of Tamil ethnicity from Batticaloa District in the Eastern Province of Sri Lanka and that, in 2007-2008, together with friends, he had been forced to collect sea sand and put up posters for the Tamil Makkal Viduthalai Pulikal (TMVP)/Karuna paramilitary group: at [6] and [8].
The Authority rejected certain of the Applicant’s claims. Pertinent to the grounds of review, the Authority did not accept that a former member of the Sri Lankan Parliament as member of the Tamil National Alliance (TNA) was the Applicant’s great uncle (who shall be referred to herein under the pseudonym Mr Anon) and found that a letter of support purportedly written by Mr Anon was not credible and reliable: at [10]-[11]. Those findings were reiterated at [12], where the Authority went on to reject the claim that the Applicant was politically active in 2010 or 2012 in support of his alleged great uncle’s campaigning or otherwise: at [12].
Nonetheless, the Authority was persuaded to accept that the Applicant was mistreated by members of the TMVP in 2012 at the TMVP Batticaloa office. The decision maker found, as witnessed by the delegate, that the Applicant still had a scar on his hand inflicted by the TMVP who had branded him with a hot iron: at [13]. The Authority also accepted that members of the TMVP had tried to recruit the Applicant to assist with its own political agenda and election campaigning which the Applicant had refused; but not that the Applicant had continued to be threatened or harmed by them after this incident. The Authority found the Applicant’s claimed threats from the TMVP in the months leading up to the September 2012 election to be inconsistent and exaggerated: at [14].
The Authority rejected the Applicant’s claim to have received a threatening letter from the TMVP in relation to the claimed TNA assistance: at [15]; did not accept that friends had reported the TMVP continues to look for the Applicant: at [16]; and ultimately found that the main reason the Applicant had decided to depart Sri Lanka in 2012 was related to his educational experiences, his family’s expectations, how he had disappointed the family, how he felt about not succeeding and the societal pressures - having seen the opportunity to escape on a boat heading for Australia on the same night that he intended to commit suicide: at [17].
At [18]-[29], the decision maker conducted the refugee assessment. There, the Authority reiterated its earlier findings that the Applicant did not assist with the campaigns of Mr Anon and the TNA in the 2010 and 2012 elections, considered country information about the TMVP no longer being active as a paramilitary group (since 2015 elections) and considered that the Applicant had not claimed to be politically active in politics since departing Sri Lanka, had expressed no interest in Sri Lankan politics and its situation and had done nothing to bring himself to attention of paramilitary groups (TMVP or the TNA) since his departure in 2012.
The Authority also considered the Applicant’s claim to fear that the Sri Lankan Government would not be able to protect him because of his Tamil ethnicity. The Authority reasoned that, because it had found that there was no real chance the TMVP would be targeting the Applicant on return, then the issue of protection afforded by the Sri Lankan authorities to Tamils who may be persecuted by the TMVP did not arise: at [22].
Societal pressures, employment prospects and potential consequences for returning as an asylum seeker were also considered and dismissed: at [24] -[28].
Ultimately the Authority determined that the Applicant did not meet the definition of “refugee” at s.5H(1) of the Migration Act 1958 (Cth) (Act) and therefore did not meet s.36(2)(a): at [29].
The Authority’s complementary protection assessment
After considering the statutory threshold: at [30]-[31], the Authority’s complementary protection assessment proceeded on the basis of earlier findings made including the conclusion that the Applicant does not face a real chance of serious harm from members of the TMVP.
The Authority determined that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant did not meet s.36(2)(aa): at [32] – [35].
APPLICATION BEFORE THIS COURT
On 29 December 2017, the Applicant filed the originating application for judicial review of the Authority’s decision and a supporting affidavit sworn 28 December 2017.
In February 2018, the First Respondent filed a response and a court book.
On 6 August 2018, the Applicant filed an amended application.
The matter was listed for final hearing before the Court as presently constituted on 24 October 2024 which listing was met with notice that the Applicant had changed representative and sought an adjournment. The adjournment was not opposed and was granted.
On 7 November 2024, the Applicant filed a further amended application. The further amended application identified 2 grounds of review., in the following terms:
1.The Review miscarried because the Authority made a jurisdictional error by rejecting the claimed familial and political connection with [XX], without consideration of whether to invite the Applicant under s.473DC to respond to the concern:
[…]
2.The Authority’s finding that the TMVP did not further harm the applicant after branding his hand with a hot iron and that therefore the applicant would not face a real risk of harm in the foreseeable future was unreasonable:
[…]
(sic.) (particulars omitted)
On 19 December 2024, the Applicant filed an affidavit of a paralegal employed by his firm of solicitors which annexed a purported translation of the delegate’s interview of 20 April 2017.
Both parties subsequently filed submissions and the First Respondent filed a list of authorities.
On 17 February 2025, the matter proceeded to final hearing at which the Applicant and the First Respondent were respectively represented by solicitor advocates.
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), as cited in BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443 at [19]–[20] (Kelly J).
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was to be efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it may have considered new material and may have invited a referred applicant to provide, or comment on, “new information”.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerned how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
Applicable principles
Relevant to both grounds of review is the notion of “legal (un)reasonableness”.
“Legal unreasonableness” may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [68] and [76] (Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464 at [43] (Gordon J). However, the test has been described as “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541 at [11] (Kiefel CJ). It is not met where reasonable minds could have come to different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ).
The provision for getting new information under s.473DC as in force at the relevant time was expressed in discretionary terms as distinct from mandatory (“may” not “must”). It is well established that the discretion conferred on the Authority by s.473DC was subject to the implied condition that it be exercised reasonably: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ) (ABT17) citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Gageler, Keane, Nettle, Gordon and Edelman JJ) at [227].
The Applicant here relied on the authority in ABT17 as analogous. In ABT17, the absence of a visual impression of the referred applicant (an assessment of their demeanour) was found to create an informational gap that was, unreasonably, not rectified by the exercise of the discretionary power to get and consider new information under s.473DC: at [13]-[16]. Those particular circumstances involved a departure from the delegate’s favourable assessment of credibility based on the Authority’s own assessment of the manner in which evidence had been given in an audio recording of the applicant’s interview. As the High Court of Australia explained in that case:
22. The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23. To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
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…
(footnotes omitted)
Useful guidance is also found in the decision of DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [46] (Griffiths, Mortimer and Steward JJ):
As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material.
It falls to determine whether the Authority acted in a way that was legally unreasonable as pleaded by the first and/or second grounds.
FIRST GROUND
The respective contentions
By the first ground, the Applicant contended that the Authority unreasonably failed to consider putting its concern and inviting further response or evidence pursuant to s.473DC before rejecting the Applicant’s claimed familial and political connection with Mr Anon.
The Applicant put forward a series of propositions for why the Authority’s decision was affected by legal unreasonableness by way of particulars to this first ground:
i.The Delegate [at CB130-131] considered the Applicant’s claimed familial connection with [Mr Anon], and his answers given during the Protection Visa interview, and implicitly accepted the applicant’s political connection and, implicitly the claimed familial connection.
ii.The Delegate’s reliance upon the Applicant’s answers in the protection visa interview as being “consistent” was indicative that the Delegate had the advantage of the Applicant’s demeanor in the interview and that this formed a part of the Delegate’s assessment.
iii.The Delegate’s statement that “I note that [Mr Anon] himself stated only that the applicant was ‘known to me for quite a period of long time’ with no mention of their relationship.” was insufficient to put the Applicant on notice that the Authority might reject the claimed familial connection and therefore also the political claim in its entirety.
iv.The Authority rejected the claimed familial connection with [Mr Anon] [at IAA 16,CB168] and this was dispositive of the review of the political claims [at IAA12]
Without the claimed familial connection, I am not convinced the applicant was involved in the election campaigns of the TNA in 2010 and 2012.
v.The Authority did not have the benefit of consideration of the Applicant’s demeanor in his answers to the questions about his connection with [Mr Anon]. [ABT17 v Minister for Immigration and Border Protection [2020] HCA 34].
vi.The Authority unreasonably failed to consider exercising the power under s.473DC to put to the Applicant its concerns that there was no family connection between him and [Mr Anon] and invite him to respond and provide additional information, or to attend an additional interview.
vii.The Authority’s rejection that the applicant had a family connection to [Mr Anon] was unreasonable:
i.The Authority’s consideration that [Mr Anon] would mention any family connection in the letter was a rebuttable presumption in that it would also be unreasonable to expect a politician to mention a family connection where seek to obtain favourable migration outcomes for a relative abroad could be seen inside Sri Lanka as corruption in office.
(sic.)
At hearing, the Applicant’s representative sought to expand on the pleading as follows:
And it should be added also in relation to – like, I would expand upon that – holistically his demeanour in relation to his relationship with [Mr Anon] and the TNA and his political involvement. And I accept that this is not specified in the application, or the migration application as amended, but that’s the essence of it – is – it’s not that it’s a separate claim about his relationship with [Mr Anon]. It’s a holistic claim that – this was the reason behind his involvement with the TNA, but it’s not the subject of his adverse interest from the TNA, and neither should it be the subject of the adverse – neither could there be a cultural expectation that this should included in the letter from [Mr Anon].
And:
So essentially with this point of inflection, not accepting the familial relationship which was accepted by the delegate, including based on his demeanour, the Authority has simply discarded all of the subsequent work of the delegate, including the assessment of the Applicant’s demeanour in relation to his political activities, and simply dismissed it without addressing that at all. Therefore, the Authority’s actions are not in compliance with the Act, because having come up with this new concern, it didn’t go through an intellectual process of considering – the process provided limited fairness or procedural processes provided under the – under Part 7 for putting these questions to the – or for consideration, at least at an intellectual level, of whether to put these issues to the applicant.
And further there’s no recognition in there of the holistic assessment of the Applicant’s demeanour. There’s nothing that the delegate found to not be credible except that he wouldn’t be at risk of harm.
The First Respondent contended that there was no error of jurisdiction, including because the delegate had not implicitly accepted the familial connection claim, the Authority’s decision was not based on a dispositive issue not put to the Applicant, that when read in the relevant statutory context the decision of the Authority in choosing not to get, request or accept new material was within the bounds of legal reasonableness and that the conclusion reached by the Authority was not a conclusion which no rational or logical decision maker could have arrived at.
Consideration
In summary, the Authority’s decision record reflects that:
(a)The Authority did not accept that Mr Anon, as a former member of the Sri Lankan Parliament and member of the TNA, is the great uncle of the Applicant at [10] and [11].
(b)The Authority rejected the support letter of Mr Anon as not credible and reliable at [11].
(c)The Authority did not accept that the Applicant assisted Mr Anon with his parliamentary election campaign in 2010 or with his eastern provincial election campaign in 2012 at [12].
The Applicant’s unreasonableness argument centred on the contention that the Authority departed from the delegate’s implicit acceptance of the Applicant’s claimed familial connection to Mr Anon including based on his demeanour. By oral argument the Applicant’s representative was also understood to say that the Authority unreasonably, and without intellectual or intelligible process, then discarded the remainder of the delegate’s work including the delegate’s assessment of the Applicant’s demeanour in relation to his political activities as to dismiss the political connection claim.
As a starting point, the Authority was empowered to make a fresh decision and in conducting its review was not restricted to the correction of error on the part of the delegate.
Nonetheless, it is necessary to look to the delegate’s reasons given the emphasis on demeanour in the pleadings. The critical paragraphs of the delegate’s reasons provided:
The applicant claims to have provided greater assistance to his great-uncle [name omitted] (aka [Mr Anon]) in the elections of 2012. The applicant was asked to describe his relationship to [Mr Anon] and he responded that it had been a very close relationship, with many instructions coming from him on the work to be done. I note that [Mr Anon] himself stated only that the applicant was ‘known to me for quite a period of long time’ with no mention of their relationship.
The applicant was asked to describe in more detail his activities in support of [Mr Anon] in 2012. He responded that he had distributed and affixed campaign posters, canvassed voters door-to-door, and issued leaflets and notices. By reason of the applicant’s consistency on this point, from statement to interview, I accept that he provided low-level support to the campaign of [Mr Anon] in 2012.
(footnotes omitted)
The characterisation of the delegate’s reasons for which the Applicant contends are not available on the face of those reasons. The Delegate found the Applicant to be a credible witness as to events recounted to them but did not make a finding as to the credit of the Applicant’s claims in all respects. The delegate fell short of making an express finding on the matter of the familial relationship. It is not apt to characterise the delegate’s reasons as constituting an implicit finding that Mr Anon is the great uncle of the Applicant where the delegate had expressed doubt by noting the absence of a response from the Applicant when asked orally and further noted the letter did not address the matter.
The Authority’s assessment of the evidence about the familial relationship at [10] and [11] was more detailed but consistent with the descriptions of the evidence in the delegate’s decision. The Authority’s reference to there being an acknowledgement and no further explanation upon the delegate’s querying of the relationship was factual and does not purport to take account of the Applicant’s demeanour. Similarly, the Authority’s reference to the content of the support letter was factual and does not involve an assessment of the Applicant’s demeanour.
The rejection of the Applicant’s familial connection claim was not of itself dispositive of the claim to have assisted Mr Anon with his parliamentary election campaign in 2010 and with his eastern provincial election campaign in 2012. On a fair reading of the Authority’s reasons as a whole, the Authority understood that the Applicant claimed the reason for his support of the Mr Anon political campaign was based on his relationship with Mr Anon as opposed to any political interest of his own and drew on probative evidence before it. The delegate had made a specific assessment that the Applicant was consistent on this point “from statement to interview” which is properly characterised as a reference to the content rather than the manner of the evidence. The Authority dismissed the political campaign/connection claim(s) by reference to the support letter of Mr Anon which it determined was not credible and not reliable and having regard to responses the Applicant had given to questions at arrival interview: at [11] and [12]. The Authority added that, without the claimed familial connection, it was not convinced that the Applicant had been involved in the TNA election campaigns of 2010 and 2012. The Authority did not form a different view of this claim with regard to the Applicant’s demeanour before the delegate. It was open to the Authority to weigh the evidence before it and arrive at a different conclusion to that of the delegate.
In any event, the contention that Mr Anon was the Applicant’s great uncle was not a new issue before or conceived of by the Authority. The claim was put by the Applicant in articulating his claims in his protection visa application and is a matter that was squarely and twice put to the Applicant for a response in the delegate’s interview. The claim of a familial relationship with Mr Anon was also traversed with doubt (albeit not subject of an express finding) in the delegate’s decision. In my view, the Applicant was sufficiently on notice and the Authority was entitled to take the matter and responses given on transcript into account as it did. I am not persuaded that the fact that the Authority identified difficulties and limitations in the material relied upon by the Applicant rendered it unreasonable for the Authority not to have sought further information. This is particularly so when regard is had to the context of the statutory scheme under Part 7AA, which confined the approach to procedural fairness.
It is apparent that the Authority considered there to be a lack of probative evidence in support of the familial and political campaign/connection claims. That the Authority could have explored its concerns with the Applicant, and that the Applicant may have provided relevant information had this occurred, does not demonstrate that it was legally unreasonable for the Authority not to have done so.
There is no discernible error in respect of ground 1.
SECOND GROUND
Respective contentions
By the second ground, the Applicant asked the Court to find that the time period between the accepted torture of the Applicant and his departure from Sri Lanka was insufficient to support the Authority’s finding that he was no longer of interest at the time of his departure. The particulars to Ground 2 of the Application were expressed as follows:
i.There elapse of time between the branding incident in September 2012 in the leadup to the 2012 election, and the time the Applicant fled Sri Lanka also in September 2012, was insufficient to support the finding of the Authority that the Applicant was no longer of adverse interest from the TMVP, or at risk of serious or significant harm from them.
(sic.)
The First Respondent submitted that the Authority’s conclusion that the Applicant did not face a real chance of harm from the TMVP on return to Sri Lanka was based on several findings which could not be characterised as being illogical, irrational or unreasonable on the established authorities.
Consideration
In summary, the Authority accepted that the TMVP was trying to recruit the Applicant to assist with its own political agenda and that the Applicant was mistreated by the TMVP in 2012 at the TMVP Batticaloa office and bears a scar on his hand as witnessed by the delegate. The Authority considered that the scar could have been obtained by other means but that the description to the delegate was compelling: at [13]. However, the Authority rejected the Applicant’s claims of continued threats or harm after this incident by reference to the Applicant’s written claims on the basis this contradicted what he had said at interview - ultimately concluding that the Applicant’s claims of threats from the TMVP in the months leading up to the September 2012 elections were inconsistent and exaggerated: at [14]. The Authority also rejected the purported TMVP threat letter as implausible absent an English translation, in circumstances where the letter was provided by the Applicant in support of his claims some months prior to the delegate’s interview and a translation of which was requested by the delegate within 7 days of interview – but was never provided.
As will be apparent, the Authority rejected the Applicant’s claims of ongoing threats or harm from the TMVP on the evidence before it. The Authority provided logical justification for its rejection of the purported TMVP threat letter and was entitled to conclude as it did in this respect.
There is no discernible error in respect of ground 2.
CONCLUSION
For the above reasons, the application must be dismissed. I will order costs in the sum of $7,180 being less than the relevant scale amount.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 13 March 2025
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