JCL24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 758
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JCL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 758
File number: PEG 410 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 27 May 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal reasoned illogically, irrationally and failed to give the applicant’s claim active intellectual consideration – whether the Tribunal made unwarranted assumptions – whether the Tribunal misapprehended the evidence of the applicant – whether the Tribunal made unreasonable credit findings – whether the Tribunal failed to consider all of the corroborative evidence – whether the Tribunal failed to determine that the law prohibiting publication of Liberation Tigers of Tamil Eelam symbols was discriminatory to the applicant for Convention reasons – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 36, 424A, 476, 477
Migration Regulations 1994 (Cth) Sch 2 cl 600.211
Cases cited: BEL16 v Minister for Home Affairs (2019) 167 ALD 295; [2019] FCA 1678
BJO18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666
MZAWP v Minister for Immigration and Multicultural Affairs (2005) 85 ALD 41; [2005] FCAFC 335
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Weheliye v Minister for Immigration and Multicultural Affairs [2001] FCA 1222
Division: Division 2 General Federal Law Number of paragraphs: 121 Date of hearing: 9 April 2025 Place: Perth Counsel for the Applicant: Mr G Schipp Solicitor for the Applicant: Australian Presence Legal Counsel for the First Respondent: Mr N Dour Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 410 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JCL24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the Administrative Appeals Tribunal on 11 October 2024 (case number 2427096).
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant alleges that the Tribunal made a jurisdictional error by:
(a)reasoning illogically or irrationally, failing to give the applicant’s claim active intellectual consideration and failing to have regard to rationally probative evidence;
(b)making unwarranted assumptions;
(c)misapprehending the applicant’s evidence;
(d)making unreasonable credit findings;
(e)failing to consider all of the corroborative evidence; and
(f)failing to determine, as a matter of law, that the law prohibiting publication of Liberation Tigers of Tamil Eelam (LTTE) symbols was discriminatory to the applicant for Convention reasons.
For the reasons explained below, I have found jurisdictional error on the basis that the Tribunal misconstrued one aspect of the applicant’s evidence and, as a consequence of that misconstruction, made an adverse credit finding that was not open to it on the evidence. That adverse credit finding was then relied on by the Tribunal as part of the reasons for forming an unfavourable view of the applicant’s credibility more generally, which was in turn relied on to reject some of his central claims for protection. I issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to require the Administrative Review Tribunal to reconsider the review application according to law.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant applied for a visitor visa offshore in February 2024. A delegate of the Minister refused to grant the applicant a visitor visa on 29 February 2024 because the delegate was not satisfied that the applicant met cl 600.211 in Sch 2 of the Migration Regulations 1994 (Cth), which required the delegate to be satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.
The applicant entered Australia in July 2024 as an unauthorised air arrival and was detained at the airport.
The day after his arrival, the applicant applied for a protection visa.
On 16 July 2024 the applicant’s representative provided a statement outlining the applicant’s protection claims and supporting documents.
On 18 July 2024 the applicant and his representative attended an interview via video link to provide additional information in relation to his protection visa application.
The applicant’s representative provided a post-interview submission and a statement by the applicant in response to adverse information on 26 July 2024.
On 6 August 2024 a delegate of the Minister refused to grant the applicant a protection visa.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 9 August 2024. During the course of the review the applicant provided to the Tribunal a pre-hearing statement, supporting documents and a response to the hearing invitation. The applicant also provided additional documents after the hearing in response to an invitation under s 424A of the Migration Act to comment on information from the applicant’s visitor visa file which would be the reason, or part of the reason, for affirming the delegate’s decision.
On 19 September 2024 the applicant, with his representative, appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages.
The Tribunal affirmed the delegate’s decision on 11 October 2024.
SUMMARY OF THE TRIBUNAL DECISION
Those parts of the Tribunal decision that are most relevant to the judicial review application are discussed in detail in the consideration of the grounds below. The summary in this section is a general overview of the Tribunal decision to give better context to the consideration of the judicial review application below.
The Tribunal did not find the applicant to be a credible or truthful witness and considered that there were numerous inconsistencies in his evidence, including in relation to the following matters:
(a)based on the applicant giving evidence that the last time he followed up his outstanding visitor visa application was in December or January, while also acknowledging that the visitor visa application had been made on 24 February 2024 (which the Tribunal accepted), the Tribunal found that the applicant gave incorrect evidence to the Tribunal as to the timeframe in which the visitor visa application was filed, and the basis of his decision not to use the same agent that he claims completed the visitor visa application for him;
(b)the Tribunal found that stamped pages that purported to be from the applicant’s passport showing travel were from someone else’s passport;
(c)the Tribunal found that a certificate of registration of a motor vehicle, provided by the applicant, appeared to have been altered and noted the applicant’s evidence that the document was not genuine;
(d)the applicant gave inconsistent evidence about whether he owned property, with the Tribunal finding that the applicant did own a property the subject of a deed of transfer provided to the Tribunal;
(e)the applicant provided a letter from an employer in support of his visitor visa application, which contained an employee signature that did not match the applicant’s signature, and which suggested that the applicant worked as a Senior Quantity Surveyor, whereas the applicant gave evidence that he has never worked as a quantity surveyor;
(f)the applicant misrepresented in his visitor visa application that both of his parents were living in Sri Lanka, whereas his mother was in Australia at the relevant time and his father was deceased; and
(g)the applicant gave conflicting evidence to the Department and to the Tribunal as to when he last saw his older brother.
The Tribunal considered and rejected the applicant’s submission that the visitor visa application was prepared by an agent and that the action of an agent should not be used to assess the applicant’s credibility with respect to his claims for protection.
The Tribunal was satisfied that the applicant did not face harm due to his Tamil ethnicity alone. However, the Tribunal accepted that the applicant’s Tamil ethnicity was a risk factor that needed to be considered in conjunction with the applicant’s claims as a whole.
The Tribunal accepted that the applicant is an affluent Tamil businessman who operated a jewellery shop in Sri Lanka. The Tribunal considered it possible that the applicant had experienced some extortion at the hands of the Criminal Investigation Department (CID) after posting LTTE symbols on his Facebook page. However, the Tribunal did not accept that this fact by itself gave rise to a real risk or a real chance that the applicant would suffer from extortion to any relevant degree in the future.
The Tribunal found that the applicant left Sri Lanka lawfully and without attracting the interest of the authorities. The Tribunal gave the applicant the benefit of the doubt and accepted that he utilised people smugglers to assist him to get from Qatar to Australia.
The Tribunal accepted that the applicant (re)posted LTTE symbols on his Facebook page, comprising a picture of a gold flower and a picture of a tiger pendant, both of which had been originally posted by his brother. The Tribunal did not believe the applicant’s evidence that he did not have full understanding of the banning of public display of LTTE symbols in Sri Lanka. The Tribunal found that the authorities in Sri Lanka did not consider the applicant to be involved with or attempting to restart the LTTE. The Tribunal accepted that the posting of LTTE symbols would attract a response from the authorities if it came to their attention and accepted that there was a real chance that the posting of LTTE symbols came to the attention of the authorities in Sri Lanka. However, the Tribunal considered that the law against displaying LTTE symbols in Sri Lanka is a law of general application, reasonably appropriate and adapted, which does not have a discriminatory effect on the applicant personally. The Tribunal did not accept that the applicant had been taken by the CID and bound to a tree because the applicant’s evidence was found to be unreliable in respect of other matters, and he did not advance anything to corroborate this aspect of his story.
The Tribunal considered the applicant’s profile to be that of a Tamil, whose brother had successfully sought protection in Australia and is selling LTTE symbolic jewellery online, with such activity coming to the attention of the Sri Lankan authorities through the applicant’s reposting of it, and who left Sri Lanka lawfully but used people smugglers and a false passport to enter Australia. The Tribunal considered that the applicant will likely be detained and questioned at the airport on his return to Sri Lanka and that he will likely be referred to other agencies for questioning.
In assessing the applicant’s claims against the refugee criterion in s 36(2)(a) of the Migration Act, the Tribunal found that the applicant’s claimed risk of harm did not arise for the essential reason of his race, membership or a social group comprising his relationship with his brother who has been granted protection in Australia, or his political opinion.
In assessing the applicant’s claims against the complementary protection criterion in s 36(2)(aa) of the Migration Act, having regard to the applicant’s cumulative profile, the Tribunal accepted that the applicant would be questioned about his travel to Australia and that it would be disclosed that the applicant used a fake passport to gain entry to Australia and this may lead to further investigations and perhaps interviews with other agencies and his Facebook posts may be discovered. Based on the treatment the applicant would be likely to face at the airport, the Tribunal found that there were not substantial grounds for believing that the applicant would face a risk of significant harm at the point of entry. The Tribunal accepted that the applicant may be subjected to further checks and monitoring by the Sri Lankan authorities after returning to his home area, but did not accept that this would rise to the level of significant harm.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 28 October 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application dated 12 March 2025 which contains the following grounds of review:
The Tribunal made a jurisdictional error in that it:
1.Reasoned illogically, irrationally, and failed to give the Applicant’s claim active intellectual consideration, and failed to have regard to rationally probative evidence:
a. In relation to the timing and purpose of the Applicant’s Visitor Visa,
b. In respect to the information provided to an agent for the Visitor Visa,
c. In relation to the engagement of an agent,
d. As to whether the Applicant had an imputed political opinion,
e. In relation to the likelihood of future extortion,
f.In relation to the finding that the Applicant was persecuted for displaying LTTE symbols.
2. Made unwarranted assumptions:
a. In relation to the engagement of an agent,
b. In relation to his imputed political opinion,
3.Misapprehended the evidence of the Applicant
a. In respect to the “property” he owned in Sri Lanka,
b. In respect to which brother the Applicant had not seen for 10 years.
4. Made unreasonable credit findings, including in respect to:
a. The property he owned in Sri Lanka,
b. The brother he had not seen for 10 years,
c. Why he published photos online,
5.Failed to consider all of the corroborative evidence, including the findings of the Tribunal that a response from the authorities was likely and in failing to consider county information or enquire with the Applicant regarding his detention and torture and in relation to his imputed political opinion.
6.In failing to determine, as a matter of law, that the law prohibiting publication of LTTE symbols was discriminatory to the Applicant for convention reasons.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 3 December 2024; and
(b)an affidavit of Shamili Kugathas filed on behalf of the applicant on 12 March 2025, which annexes a transcript of the hearing convened by the Tribunal on 20 September 2024.
CONSIDERATION OF THE APPLICATION
Taking into account the manner in which the case has been presented by the parties, it is convenient to address the application by reference to the findings of the Tribunal that are challenged rather than addressing the grounds sequentially.
Relevant legal principles
There is no dispute between the parties as to the legal principles to be applied in this matter.
Unreasonableness, illogicality and irrationality
The applicant referred to the principles in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 as being relevant to the assessment of considering whether a decision-maker has acted reasonably. There is no doubt that these principles are relevant. In circumstances where ground 1 is pleaded as, amongst other things, an illogicality and irrationality ground, it is also relevant to have regard to the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, where their Honours said at [131] and [135]:
131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Unwarranted assumptions and the need to proceed by reference to rationally probative evidence
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [45], in assessing whether the Tribunal’s credibility findings were unreasonable, the Court found that several findings were underpinned by ‘unexpressed and unwarranted assumptions not based in any evidence’.
The Court in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685 confirmed that a decision must be made based on rationally probative evidence, rather than speculation or suspicion (also cited in DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [27]).
Credibility findings
Credibility findings can be challenged on judicial review. In BEL16 v Minister for Home Affairs (2019) 167 ALD 295; [2019] FCA 1678, Beach J said at [16]-[26]:
16.First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
(a)Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.
(b)Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.
(c)Viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.
(d)Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.
17.But to be clear, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it so engaged.
18.Second, over-ready use of labels such as “inconsistency” or “discrepancy” when characterising evidence of events invites error.
19.Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.
20.Fourth, even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given.
21.Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being “conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given” (AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ).
22.Sixth, I accept that the Tribunal’s reasons should be read as a whole, and further should not be “construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 drawing upon Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).
23.Seventh, I refer to and repeat what I said in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46] to [52].
24.Eighth, in AVQ15, the Full Court observed that “[c]onsiderable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review” (at [41(f)]). Further, it observed (at [41(c)]) that:
Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
25.Ninth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly or cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding.
26.Finally, to the extent that it may be suggested that before I deal with the question of materiality I have to determine the error to be of a particular type, the errors that I have identified elsewhere so infected the Tribunal’s reasoning such that the relevant findings were illogical, irrational or unreasonable. And as a result and overall given their materiality, the Tribunal’s decision was affected by jurisdictional error. Of course, the use of expressions such as illogicality, irrationality or unreasonableness may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact. And I also accept that differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with that of a judge undertaking judicial review or an appeal therefrom, do not establish illogicality, irrationality or unreasonableness. There is a high threshold.
Likewise, in DAO16, the Full Court said at [30]:
The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(Citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
Failure to consider evidence
The Tribunal is required to consider the evidence before it. The Tribunal was not necessarily required to refer to every piece of evidence in its reasons (for example, a failure to refer to evidence may indicate that the Tribunal considered it was not material or that it was given no weight, rather than that it was overlooked), but a failure to consider evidence can amount to jurisdictional error depending on the importance of the ignored material to the Tribunal’s process of decision-making: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [34], [47].
The visitor visa: ground 1(a)
The applicant asserts, by ground 1(a), that the Tribunal made a jurisdictional error by reasoning illogically and irrationally, failing to give the applicant’s claim active intellectual consideration and failing to have regard to rationally probative evidence in making findings about the timing and purpose of the applicant’s earlier visitor visa application.
The Tribunal addressed the visitor visa application at length in its decision. The visitor visa application was not before the Tribunal at the time of the applicant’s hearing, but was obtained by the Tribunal after the hearing and was the subject of an invitation to comment provided to the applicant under s 424A of the Migration Act.
The first aspect of the Tribunal’s reasoning in relation to the visitor visa application that the Tribunal refers to is at [11] of its reasons, where the Tribunal said:
The date that the visa application was made by the applicant is at issue. During the hearing the applicant told gave evidence about his motivations and actions which depended on him making the application for a protection visa earlier than 24 February 2024. As this is relevant to the plausibility of his story and his credibility as an historian it is discussed in further detail below.
I acknowledge the submission advanced by Counsel for the applicant that aspects of this paragraph are confusing. In particular, it is unclear why the Tribunal referred to the applicant’s motivations for making a protection visa earlier than 24 February 2024 in circumstances where the claimed events that he says caused him to seek protection did not occur until after that time.
However, this paragraph would not, on its own, give rise to jurisdictional error. It is important to look at what the Tribunal actually said about the visitor visa application and how it relied upon the information in that application.
The first concern raised by the applicant in relation to the visitor visa application is the Tribunal’s reasoning based on the timing of that application. The Tribunal found that the applicant made the visitor visa application on 24 February 2024, based on the automatically embedded time and date on the record of responses submitted electronically, and the applicant had accepted this to be the case when it was put to him by the delegate that his application was lodged on that date: Tribunal’s reasons at [83], [86], [87]. The applicant also gave evidence to the Tribunal that he last followed up the visitor visa application in December or January: Tribunal’s reasons at [82]. It appears that the concern of the Tribunal is that the applicant’s evidence was that he last followed up the ‘outstanding’ visitor visa application in December or January (implicitly suggesting it had been lodged before then), when it fact it was not lodged until 24 February 2024. The Tribunal also had concerns about why the applicant did not use the same agent when he decided to travel to Australia to seek a protection visa: Tribunal’s reasons at [88].
Counsel for the applicant in his submissions advanced alternative explanations as to the reasons the last time the applicant followed up his visitor visa application was before it was lodged and why he may not use the same agent. These submissions are not to the point. The question is not whether some other finding to the one made by the Tribunal might have been open on the evidence. The question is whether the finding that the Tribunal in fact made was open to it on the evidence before it. Although other findings would have been open to the Tribunal, on the evidence before the Court, I accept that the Tribunal’s conclusion about the timing of the visitor visa application, and its finding that the applicant’s evidence of last following up the ‘outstanding’ visitor visa application in December or January suggested that the applicant gave incorrect evidence about when it was lodged, was open to the Tribunal on the evidence before it.
The applicant has also advanced submissions about the Tribunal’s findings as to the purpose of the visitor visa and some of the factual inconsistencies that the Tribunal identified in relation to that visitor visa application. Some of the factual inconsistencies are addressed with other grounds below.
In relation to the purpose of the visitor visa application, the applicant submitted that his oral evidence to the Tribunal was that he wanted to visit his brothers and mother and see his brother’s shop, but the Tribunal found that there was another purpose to the visitor visa application, without actually identifying that purpose. The Tribunal said at [129] of its reasons:
The Tribunal finds that the applicant’s purpose in applying for a visitor visa was not temporary tourism, and that he intentionally misled the Department to secure a favourable migration outcome.
The applicant submitted that this conclusion was based on findings that were both incorrect and which do not point in that direction. The findings referred to by the applicant in advancing this submission are as follows:
(a)The Tribunal accepted that the applicant had not travelled overseas on his passport submitted with his visa application (with the applicant accepting, and the Tribunal finding, that the stamped pages showing travel were not from that passport). The Tribunal found at [100] of its reasons that the disposal of the applicant’s passport en route to Australia was consistent with him knowing that pages of a third party’s passport had been provided to the Department. The applicant accepted this might be true, but also submitted that it was also consistent with the applicant’s evidence that he had been told to dispose of his passport.
(b)The Tribunal accepted the applicant did not own the motor vehicle the subject of a registration certificate, with the Tribunal finding at [104] that the certificate of registration had been altered to insert the applicant’s name where it does not appear in the original. The applicant submitted that given his acknowledgement that he did not own the vehicle, there is no adverse credit finding to be made, and the provision of the false information points to the use of an agent. The applicant questioned why he would not provide evidence of the vehicle he in fact owned if he personally lodged the visitor visa application.
(c)The Tribunal found that the applicant owned a property referred to in a deed of transfer. The applicant described this in his submissions as a finding that he ‘did not the property’ in Sri Lanka and submitted that the finding was irrational. The applicant submitted that the finding was based on the applicant saying that he owned land and a shop, or several parcels of land, whereas the property identified in the deed was described as a ‘nice modern home’ and the applicant never claimed that he owned a house. The applicant submitted that there was no adverse credit finding to be made.
(d)The Tribunal accepted that the applicant was not a quantity surveyor and that the employee signature on the documents submitted with his visitor visa application that suggested he was a quantity surveyor did not match his signature elsewhere in the documents. The applicant submitted that if the applicant had lodged the visitor visa application himself, it would have been far easier to sign the documents himself and make them realistic and that the evidence actually submitted points to the use of an agent.
(e)The Tribunal at [111] of its reasons noted that ‘quantity surveyor’ is on the medium and long-term strategic skills list and suggested that creating a back story that the applicant is a valued employee is evidence that he was not a genuine short-term entrant but had intentions of relocating to Australia to work. The applicant submitted that this finding is problematic, questioning why the applicant would know this personally and suggesting that the finding is based on an unwarranted assumption. The applicant also submitted that if you wanted to relocate for work, why would he apply for a visitor visa and not a skilled visa. The applicant submitted again that the evidence points to the use of an agent.
(f)The Tribunal found at the time of the visitor visa application that the applicant’s mother was in Australia and his father was deceased.
(g)The Tribunal found that the applicant’s brothers were in Australia and found that the applicant gave inconsistent evidence to the effect that he had not seen his eldest brother for 10 years. The applicant submitted that the transcript clearly shows that the applicant is referring to his second brother not his oldest brother.
(h)The applicant also referred to other factors that, in his view, should have supported the finding that the applicant used an agent to lodge his visitor visa application.
Many of the challenged factual assertions relied on by the applicant in challenging the Tribunal’s finding that he lodged the visitor visa application himself are the subject of other grounds and are addressed in greater detail below. My reasons in this section should therefore be read in conjunction with my reasons below.
I then turn more specifically to the question of whether it was illogical or irrational for the Tribunal to find that the purpose of the visitor visa application was not for temporary tourism, and that the applicant intentionally misled the Department to secure a favourable migration outcome.
I accept that this finding was open to the Tribunal on the evidence before it. The concern of the Tribunal was that the applicant had provided false information in support of his visitor visa application, and the impact that this had on the assessment of his credibility more generally. It considered each relevant item of evidence and made findings as to whether the information in the evidence was false or not and it drew conclusions that were open to it on the evidence before it. It is not to the point to question whether some other explanation might be available or to question why the applicant would submit the false information. Again, for the purpose of assessing illogicality and irrationality, the question is whether the findings made by the Tribunal were open on the evidence before it. Put another way, could a rational and logical decision-maker, on the same information before the Tribunal, reach the conclusion that the Tribunal reached. Taking into account all of the evidence, and notwithstanding my finding below that the Tribunal misunderstood the evidence in relation to when the applicant last saw his eldest brother, I am satisfied that the Tribunal’s conclusion that the purpose of the visitor visa application was not for temporary tourism and that the applicant intentionally misled the Department to secure a favourable outcome was open to it on the evidence before it.
The applicant’s agent: grounds 1(b), (c), 2(a)
By grounds 1(b), (c) and 2(a), the applicant challenges the Tribunal’s findings in relation to whether the applicant engaged an agent to assist him with the visitor visa application and the information the applicant provided to the agent on the grounds that the Tribunal’s reasoning was illogical, irrational, not amounting to active intellectual consideration and made without reference to rationally probative evidence and that it involved the making of an unwarranted assumption.
The Tribunal relied on false information and irregularities in the applicant’s visitor visa application, made just a few months before his protection visa application, in making adverse credibility findings against the applicant.
The Tribunal acknowledged the applicant’s submission that the collective effect of the irregularities in the lodged visitor visa application prove that it was organised and prepared by an agent, and that the action of the agent should not be used to assess the applicant’s credibility with respect to his claims for protection. The Tribunal considered that there were two difficulties with that position. The first was that the employment of an agent does not release the applicant from the responsibility to provide correct information in an application. The Tribunal noted that the applicant had not advanced any reason why he was unable to take reasonable steps to ensure the agent was not providing incorrect information in the application and, rather, his evidence was that he was in fact aware that his agent was providing incorrect information. The applicant could not, in the Tribunal’s view, reasonably disavow the actions of the agent in misleading the Australian government. Second, the only evidence before the Tribunal that an agent was involved in the visitor visa application is the oral and written evidence of the applicant, which the Tribunal found inherently unlikely. There was nothing on the form or the file to indicate that an agent was engaged in the application process. The Tribunal considered that it was inherently unlikely that an agent would wait for payment until after the visa application was approved, the applicant would not have followed up with the agent if he had one to see if his visa had been granted before embarking on an unlawful entry process into Australia, and the applicant did not mention a possible outstanding visitor visa application made by an agent to the Australian government on arrival in Australia if he genuinely believed he had an outstanding visitor visa application on foot. The Tribunal did not accept that the applicant was assisted by an agent and found that his attempt to blame an agent for his own misconduct indicated dishonesty and a lack of responsibility for his actions: see the Tribunal’s reasons at [119]-[127].
In addition to the submissions advanced by the applicant and summarised at [44] above, the applicant further submitted that some of the matters relied on by the Tribunal were matters that the applicant should not be expected to know but an agent would be expected to know. The Tribunal did not grapple with the question of why the applicant would know these things. The applicant further submitted that the question of why the applicant was unable to take reasonable steps to ensure the agent did not provide incorrect information is not the relevant question when the applicant agrees that he did not take reasonable steps. Further, the applicant submitted that the matters that the Tribunal found were inherently unlikely at [125] of its reasons are not in fact inherently unlikely. The applicant submitted it is perfectly conceivable that an agent acts on contingency, particularly if he specialises in the provision of false documents. The applicant was in an urgent and desperate position when he was leaving Sri Lanka and had assistance from a relative and it is therefore understandable why he would not seek out an agent he had not heard from in five months when he needed urgent assistance. The applicant also submitted that it was incorrect to find that the did not mention a possible outstanding visitor visa application upon his arrival in Australia. The applicant submitted that the questions asked of the applicant by the Tribunal was whether he had asked about his visitor visa, not whether he had told anyone. The applicant submitted it was not clear why he should ask about it or what he would ask or how this impacts the question of whether or not he engaged an agent.
In his oral submissions, Counsel for the Minister submitted that, in considering the role of an agent in the visitor visa application, the Tribunal posited two notions. The first was that there is an agent, and if that were the case, the Tribunal considered that the applicant was aware that the agent would be giving false information and that would affect his credibility. The second notion was that if there was not an agent, what should the Tribunal make of it? The Tribunal made of it that the applicant was being dishonest and ultimately found that the applicant was dishonest and submitted the visa application himself. I consider this to be a fair characterisation of the Tribunal’s reasons in relation to whether or not the applicant was assisted by an agent.
Many of the questions raised by the applicant are matters that go to the merits of whether or not the applicant engaged an agent. Having regard to the Tribunal’s reasons as a whole, I am satisfied that the Tribunal’s finding that the applicant did not engage in agent to lodge the visitor visa application was open to it on the evidence before it, and did not involve any unwarranted assumptions or the ignoring of rationally probative evidence.
Many of the matters raised by the applicant are addressed elsewhere in these reasons. I make the following additional observations in relation to the matters that are raised solely in the context of this aspect of the applicant’s grounds.
First, I do not accept the applicant’s submission that the question of why he was unable to take reasonable steps to prevent the agent from providing false information is not a relevant question. The Tribunal was noting that if the applicant did engage an agent, he still had a responsibility to ensure that the agent provided correct information to the Australian government. The applicant did not do this and in fact gave evidence that he was aware his agent was providing incorrect information to the Australian government. It was open to the Tribunal to have regard to these matters in assessing the applicant’s credibility. In the assessment of the applicant’s credibility, the question as to why an applicant did not take steps to prevent false information been provided may be informative, particularly in circumstances where, as here, the applicant is asserting that the dishonesty of an agent should not be relied upon in assessing the applicant’s credibility. In any event, the Tribunal ultimately preferred the alternative explanation, namely, that the applicant lodged the application himself.
Second, I discern no error in the Tribunal identifying three matters as inherently unlikely in concluding the applicant did not engage in agent. It was open to the Tribunal to find that an agent who was allegedly assisting people apply for visas based on false information would expect payment upfront, rather than waiting until the visa application was approved. Further, the path that the applicant ultimately took to get to Australia (on his evidence) was fraught with risk. The applicant was dependent on other people who were, on the applicant’s evidence, engaging in illegal activity to get to Australia. If the applicant believed he had an outstanding visitor visa application, it would be a much simpler and safer path to enter Australia on that visa and it would be a simple step to ask whether the visa had been granted. It was open to the Tribunal to find that it was inherently unlikely that he would not take this simple step before embarking instead on a more risky method of entering Australia. I do not consider anything turns on specifically what questions the applicant was asked by the Tribunal in relation to the third challenge against the Tribunal’s reliance on inherently unlikely matters. The point the Tribunal was making was that upon his arrival in Australia, if the applicant thought he might have a visitor visa, or possibly have a visitor visa outstanding, one would expect the applicant to raise that with immigration officials upon his arrival in Australia rather than simply trying to enter Australia without a visa. Again, it was open to the Tribunal to find that it was inherently unlikely that the applicant would not mention the visitor visa application if he believed it was still on foot.
Imputed political opinion and the display of LTTE symbols: grounds 1(d), (f), 2(b)
By grounds 1(d) and (f) and 2(b), the applicant asserts that the Tribunal’s findings:
(a)in relation to whether he had an imputed political opinion and in relation to whether he was persecuted for displaying LTTE symbols were illogical, irrational, made without active intellectual consideration and without regard to rationally probative evidence; and
(b)in relation to whether he had an imputed political opinion involved the making of unwarranted assumptions.
At [178] of its reasons, the Tribunal reiterated its ‘finding above’ that ‘the applicant has not been imputed with pro-LTTE views by the authorities in Sri Lanka’. Although not explicit from the Tribunal’s reasons, it can be inferred that the ‘findings above’ refers to the Tribunal’s factual findings under the subheading ‘LTTE symbol jewellery’ at [156]-[170] of the Tribunal’s reasons. In these paragraphs, the Tribunal:
(a)accepted that the applicant posted LTTE symbols on his Facebook page, by reposting a picture that his brother posted of a gold flower on 28 March 2024 with the comment ‘Amazing job brother’ and reposting pictures, without comment, that his brother’s jewellery business posted of a tiger pendant on his Facebook page on 10 May 2024;
(b)acknowledged the applicant’s evidence that he had not been asked to make any jewellery with an LTTE symbol on it himself but if someone asked him for an LTTE symbol on jewellery, he claimed that ‘we’ would make it;
(c)found that the applicant posted pictures of the flower and tiger to display pride in his brother and also in the hope of inspiring orders from his own customers;
(d)considered that a Tamil resident in Sri Lanka posting images of a tiger pendant in Sri Lanka is not wise and reposting it as a new item from a jeweller without comment might be taken as incitement to buy or make jewellery bearing the most aggressive of LTTE symbols;
(e)did not accept the applicant’s evidence that he did not expect there to be a problem with posting the pictures and that, although he knew LTTE symbols were banned, he did not have a full understanding, noting that the impact of the roaring tiger emblem in Sri Lanka has been profound and the posting of this symbol must always have drawn adverse attention from the authorities;
(f)rejected the applicant’s claim that the authorities considered him to be involved with attempting to start restart the LTTE for two reasons:
(i)there was no attempt by the authorities to use the applicant as a past or future informer, noting that the applicant’s evidence was that the CID did not ask him about customers requesting LTTE symbols and did not ask the applicant to be an informer; and
(ii)the applicant was allowed to leave Sri Lanka lawfully on his own passport without interference;
(g)accepted that the posting of LTTE symbols would attract a response from the authorities if it were drawn to their attention and accepted that there was a real chance and real risk that the posting of LTTE symbols by the applicant came to the attention of the authorities in Sri Lanka;
(h)considered that the law against displaying LTTE symbols in Sri Lanka is a reasonably appropriate and adapted law of general application that does not appear to have a discriminatory effect on the applicant personally;
(i)noted the applicant’s evidence that he is not, and never has been, a supporter of the LTTE; and
(j)accepted that if the CID did take the applicant and bind him to a tree as claimed, this would amount to torture, but did not accept that the event occurred in the absence of anything to corroborate this aspect of the applicant’s story and noting that the applicant’s evidence had proven to be unreliable in respect of other matters.
The applicant submitted that the Tribunal’s finding that the CID did not consider the applicant to be involved with attempting to restart the LTTE because there was no attempt to use him as an informer and he was allowed to leave on his passport must logically be based on the proposition that those are the only two important factors to the authorities. The applicant submitted that the Tribunal’s view that a person must be asked to be an informer to have an imputed opinion is an unwarranted assumption.
The applicant also submitted that the Tribunal did not expressly consider the applicant’s evidence at [23]-[25] of his statement of 15 July 2024, where he said, in respect of his claim that in May 2024, two CID officers took him to a CID office and detained him overnight:
23.There were four officers there, and I was shown pages from my Facebook Account and the posts that I shared, and I was accused of spreading LTTE sentiments within the community. The officers questioned the activities of my brothers as they were aware that they had also departed the country illegally. They accused us of all being LTTE sympathizers. I was told that they were currently investigating my activities in Batticaloa and told that I must come to the camp tomorrow and pay them 5 lakhs. I agreed to do so as I didn’t want any more trouble.
24.The next day, I went to the shop and took money from the shop, and went to the Army Camp. I provided my National Identity Card to the army officer and then the officer looked at some papers and told me to go into the second room.
25.The same two CID officers were there, and I paid five lakhs to them. The officers told me that I should not dare create any LTTE design jewellery and sell it. I told them that I wouldn’t. I could see in front of them, a paper with my photo and name on it.
The applicant further submitted that it was illogical to suggest that merely because the CID did not ask about his customers on one occasion, that they would not have done that at a later time, noting that the applicant gave evidence that he was told the CID was currently investigating his activities in Batticaloa.
In relation to the reference to the applicant being allowed to leave on his own passport, the applicant noted that his evidence was that he obtained special assistance in leaving Sri Lanka.
The applicant also submitted that the finding that the authorities did not consider the applicant to be involved with attempting to restart the LTTE was ‘more curious’ in the context of its acceptance that the posting of LTTE symbols would attract a response from the authorities and that it was ‘worth noting’ that the Tribunal found the applicant said he would make tiger jewellery if requested.
The Minister submitted that in advancing submissions on this aspect of his case, the applicant attempts to deconstruct the Tribunal’s reasons. However, the reasons must be read fairly and as a whole. The Tribunal was not required to address every piece of evidence by running commentary. The Minister submitted that when the Tribunal’s reasons are read fairly and as a whole no error is made out. The Tribunal found that the applicant is not and has never been a supporter of the LTTE and that he had not been asked to inform against customers. The conclusion was based on the reasoning that the applicant did not possess a sufficient profile to face persecution by reason of an imputed LTTE opinion. The Tribunal instead found that the applicant was questioned and labelled as sympathiser, findings which were logical and open on the evidence.
I accept the Minister’s submissions that when the Tribunal’s reasons are read fairly and as a whole, the Tribunal’s findings were open to it. I do not understand the Tribunal to be reasoning that the two matters it referred to in finding that the applicant was not imputed with a pro-LTTE political opinion are the only matters that may be relevant. They were, rather, matters that the Tribunal took into consideration in this matter in finding that the applicant was not of ongoing interest. I do not consider that the Tribunal made any unwarranted assumptions in reaching these views.
I also do not consider that the Tribunal overlooked the applicant’s evidence referred to at [60] above. This evidence was largely addressed under a different heading relating to extortion.
I also do not accept that the Tribunal overlooked the applicant’s evidence about his departure from Sri Lanka.
In his statement made on 15 July 2024, the applicant said in relation to his departure from Sri Lanka:
I stayed at a room near the airport. The agent made all the arrangements for me to depart Sri-Lanka. They made sure that extra arrangements were made at the airport so that I could pass through without detection. Due to these arrangements I was able to depart Sri-Lanka on my own passport.
In his oral evidence to the Tribunal, the applicant said:
They came to my room and they said, “We are going to take you to the airport. Be ready.” After some time, after a while, they came and took me. …[T]hey didn’t give me anything there. … They came and said, “Get ready, we’re going to take you to the airport. First you are going to an airport called Saja[2].” They gave me the ticket to Saja and said, “At the Saja Airport, somebody else will come and meet you.” … One person came, stood in front of me, took me from the airport and left me in a room…. I was staying in that room the full day. … That night, I stayed there. Then the next full day I stayed there. … That person came that evening and said, “We are going to take you to Abu Dhabi Airport and you are having a flight from Abu Dhabi to Qatar.”
[2] This was subsequently corrected by the applicant as being a reference to ‘Sajan Airport’.
Counsel for the applicant submitted that the matter was not as simple as the applicant simply being able to leave on his own passport.
While the Tribunal did not expressly refer to this evidence in any detail in its reasons, the Tribunal, in addressing the applicant’s departure from Sri Lanka, said at [152] of its reasons:
There is a suggestion in his evidence that he also had the help of people smugglers to help him avoid trouble at the airports; his evidence is vague and unpersuasive on that point.
The Tribunal’s observation at [164] of its reasons that the applicant was allowed to leave Sri Lanka lawfully on his own passport should be read in the context of its observation at [152] that the applicant’s evidence suggesting that his departure was more complex was vague and unpersuasive. It is implicit in this observation that the Tribunal was not satisfied that the applicant had the assistance he claimed at the airport in Sri Lanka.
Extortion: ground 1(e)
By ground 1(e), the applicant asserts that the Tribunal reasoned illogically or irrationally, failed to give the applicant’s claim active intellectual consideration, and failed to have regard to rationally probative evidence in assessing the likelihood of future extortion if the applicant returns to Sri Lanka.
The Tribunal found at [145]-[150] of its reasons:
145. The Tribunal finds that the applicant is an affluent Tamil businessman.
146.The applicant’s written evidence to the Department was that his ‘ability to earn a livelihood was impacted’ and that he was ‘afraid that [he would] suffer from significant economic hardship’. The Tribunal understands the applicant’s claim to be that he is being targeted with a view to his wealth being taken from him by the authorities, who need it because of the economic downturn.
147.That forwards looking claim is speculative, based on a few alleged past incidents of payments sought by the CID in a short period of time immediately after the applicant posting of LTTE symbols on his Facebook page.
148.The country information about Tamil suggests that the government is actively trying to improve relationships with Tamil people in Sri Lanka. That makes it less likely that the authorities are presently turning a blind eye to (or are actively) extorting money from wealthy Tamils without just cause or lawful entitlement.
149.The applicant submits that there is a correlation between extortionists behaviour by the authorities and the economic health of the country. That alleged correlation has not been verified by reference to the available country information.
150.The Tribunal considers it possible that the applicant has experienced some extortion at the hands of local CID in the immediate wake of posting LTTE symbols on his Facebook page. The Tribunal does not accept that this fact by itself gives rise to a real risk or a real chance that he will suffer from extortion to any relevant degree in the future.
The Tribunal further found at [191]-[192] of its reasons, in assessing whether the applicant satisfied the complementary protection criterion:
191.The Tribunal does not accept that the applicant has been taken to a tree and tortured. The level of harm he has complained of in the past comprises extortion in the amount of around AUD $500 on one occasion, unspecified and undated alleged extortion attempts on other occasions, a night in prison, and the commandeering and damaging of his vehicle. He has advanced no evidence that either the extortion or the commandeering of his vehicle was state sanctioned and has therefore advanced no reasonable basis for a finding that he would be unable to obtain state protection.
192.The Tribunal accepts that the applicant might suffer some extortion from individuals in Sri Lanka in the future. The Tribunal is not persuaded that this would be state sanctioned, is not persuaded that state protection would not be available and is not persuaded that the extortion would be conducted in a manner or rise to a level that caused significant harm to the applicant.
The applicant characterised the Tribunal’s finding at [150] as a finding that the Tribunal did not accept that the past extortion the applicant experienced at the hands of the local CID in May and June 2024 would, of itself, give rise to a real risk that this would happen in the future. The applicant submitted that the only reason given by the Tribunal for that was that given at [148], namely that country information about Tamils suggests that the government is actively trying to improve relationships with Tamil people in Sri Lanka.
The applicant submitted that the country information relied on, and the date of it, is unstated. The applicant further submitted that such sentiments have been expressed by the Sri Lankan government for many years and that if the Tribunal accepted that extortion had occurred in 2024, it must also accept that whatever attempts have been made in the past have not resulted in a removal of the risk of extortion. Any attempts to improve relationships had not been successful in mid-2024 and there was no evidence to suggest that any further measures had been taken. It was therefore illogical for the Tribunal to accept to suggest that the risk of extortion had magically evaporated.
In relation to the finding at [192] that the applicant may suffer from some extortion from individuals and Sri Lanka in the future, but that the Tribunal was not satisfied that it would be state sanctioned and was not persuaded that state protection would not be available, the applicant noted that CID is an arm of the Sri Lankan authorities and it would be odd for the Tribunal to expect one arm of the authorities to protect him against another arm. The applicant referred to information in a 2024 report by the Department of Foreign Affairs and Trade which read:
5.12People who face threats as a result of personal disputes, or who are targeted by criminal groups for extortion, can seek protection from the police and pursue remedies through the legal system if a law has been broken. In practice, there may be a reluctance to do so should the aggressor hold a position of influence and have state connections, due to fears of retribution.
The applicant also referred to his oral evidence before the Tribunal that he could not get state protection because the authorities who threatened him and got his money all belong to the same government.
The Minister submitted that the Tribunal accepted the applicant may suffer some extortion, concluded that the extent of extortion did not give rise to a significant level of harm having regard to an assessment of the applicant’s cumulative profile. The Tribunal’s findings about the applicant’s profile were based on the applicant’s claims assessed against country information. The Minister submitted that the balance of the applicant’s submissions on this ground are in the nature of merits review about how the Tribunal ought to have construed the country information, but do not identify any error in the Tribunal’s reliance on that country information and its application to the facts before it.
I accept the Minister’s submissions in relation to this ground and I consider that the applicant’s submissions somewhat misrepresent the Tribunal’s findings and reasoning. The Tribunal accepted that the applicant had been subjected to recent extortion in the context of having recently been questioned in relation to posting LTTE symbols. The Tribunal considered the extent of the extortion to amount to around $500 on one occasion, unspecified and undated alleged extortion attempts on other occasions one night in prison and the commandeering and damaging of his vehicle. The Tribunal did not find that the applicant would not be the subject of future extortion. Rather, the Tribunal accepted that the applicant may suffer some extortion from individuals in Sri Lanka in the future, but was not satisfied that this would amount to extortion ‘to any relevant degree in the future’, or that would amount to significant harm. The Tribunal was also not satisfied that the applicant had established that the extortion and commandeering of his car was state sanctioned.
The Tribunal’s conclusion that the applicant did not engage Australia’s protection obligations on the basis of possible future extortion were open to it on the evidence before it.
The applicant’s property in Sri Lanka: ground 3(a), 4(a)
By grounds 3(a) and 4(a), the applicant asserts that the Tribunal misapprehended the applicant’s evidence and made unreasonable credit findings in relation to the property the applicant owned in Sri Lanka.
At [105]-[108] of its reasons, the Tribunal said (emphasis in Tribunal decision):
105.The visitor visa application attached a Deed of Transfer showing that the applicant is the owner of a property at an address described in the schedule to the Deed (Deed of Transfer).
106.A valuation report has been provided for the same property. It shows photographs of what appears to be a nice, modern home. The applicant is named as the current owner in the valuation, which is dated 14 November 2023.
107.The applicant’s assertion in the September Statement that he does not own property in his name is directly inconsistent with his oral evidence to the Tribunal that he owns property. His evidence was that he was successful, that he was comfortable, and that what he meant was that he had enough money and had bought a car, land and a shop. He also provided written evidence to the Department that he “owned my jewellery shop, owned several parcels of land and owned a luxurious jeep.”
108.The Tribunal finds that the applicant does own the property shown on the Deed of Transfer.
The applicant submitted that the Tribunal’s finding is irrational, in circumstances where the Tribunal found against the applicant on the basis that his evidence was that he owned ‘land, and a shop’ or alternatively ‘several parcels of land’, whereas the property evidenced in the visitor visa is a ‘nice modern home’. The applicant submitted that he never said he owned a house and rather said he owned land and there is therefore no credit finding to be made.
The Minister submitted that the Tribunal’s finding that the applicant owned a property in Sri Lanka was open and was based on the totality of the applicant’s evidence. The Minister also noted that the Tribunal found the applicant did own the property referred to in the visa application.
I am satisfied that the Tribunal’s findings and reasoning in [105]-[108] were open to it on the evidence before it. The applicant’s attempts to distinguish the terms ‘land’, ‘home’, ‘house’ and ‘property’ to submit that there was no inconsistency in his evidence misunderstand both the applicant’s evidence and the Tribunal’s reasons.
In providing a response to the Tribunal’s concerns about the visitor visa application, the applicant provided to the Tribunal a statement dated 30 September 2024. In this statement, the applicant said:
The deed of transfer document provided is false. I do not own any property to my name. If I had owned property, I would have provided this previously to the Immigration Department to evidence my affluency in Sri-Lanka.
It was this assertion that the applicant does not own any property that the Tribunal considered to be inconsistent with the applicant’s oral evidence to the Tribunal that he earned a lot of money and ‘bought land’ and his statement dated 26 July 2024, provided to the Department, in which the applicant claimed to own his own jewellery shop, several parcels of land and a luxurious jeep. The term ‘property’ can refer to both land with and without a house. There is no basis to conclude that the Tribunal misconstrued the applicant’s evidence. It was open to the Tribunal to find on the evidence before it that the applicant’s assertion in September 2024 that he did not own ‘property’ was inconsistent with his previous claims to own ‘land’. Further, taking into account this inconsistency identified by the Tribunal and the deed of transfer that was in evidence before it, it was open to the Tribunal to find that the applicant owned the property referred to in the deed of transfer.
The Tribunal did not misapprehend the applicant’s evidence or make unreasonable credit findings in relation to its findings about the applicant’s ownership of property.
The applicant’s brother that he has not seen for 10 years: ground 3(b), 4(b)
By grounds 3(b) and 4(b), the applicant asserts that the Tribunal misapprehended the applicant’s evidence and made unreasonable credit findings in relation to the identification of the brother that the applicant had not seen for 10 years.
The Tribunal said at [115]-[117] of its reasons:
115.The applicant’s oldest brother is now an Australian citizen. His other brother has had his protection claims rejected and is presently going through the review process.
116.During the Department interview the applicant stated that his older brother had returned to Sri Lanka four times since he sought asylum in 2009, and that he last saw his older brother in person in 2023 in Sri Lanka. That was relied upon in the delegate’s Decision Record. The Decision Record stated that there was no information before the delegate “to indicate that [the Applicant’s older brother] experienced any harm in Sri Lanka during his return trips, or that he was hindered at Columbo airport by the authorities for any reason”. The applicant has not commented on that finding.
117.The applicant’s evidence in the Tribunal has been to the contrary. He said that he has not seen his older brother for 10 years, and he wanted to see his jewellery business. It is clear from the whole of the applicant’s evidence that the brother who departed Sri Lanka in 2009 is the same brother that owns the jewellery business. The applicant’s evidence is therefore directly contradictory.
The applicant submitted that the Tribunal’s finding at [117] is incorrect. It is clear from the transcript that the applicant was referring to his second brother, not his oldest brother. The applicant submitted that the Tribunal’s incorrect found finding led to an unfounded credit finding.
The Minister acknowledged that the Tribunal may have made a factual error in its reference to the applicant not seeing his older brother in 10 years, when his oral evidence was that he had not seen his second sibling in 10 years. The Minister submitted that such an error is immaterial because the Tribunal found, in any event, that there was no evidence to suggest that either of his brother’s circumstances had changed since the applicant posted LTTE symbols on Facebook in May 2024. When the Tribunal’s reasons are read as a whole, its credibility assessment of the applicant by reference to this fact was not determinative.
The applicant in his oral evidence before the Tribunal was asked about why he wanted to visit Australia originally and responded:
Actually, I like to come here to see my siblings, and it’s been more than 10 years since I saw my second sibling. Also, I wanted to see my brother’s jewellery-making business.
I accept, having regard to the evidence before the Tribunal as a whole, that it was the applicant’s eldest brother who came to Australia in 2009 and who has the jewellery making business. It is this brother who was referred to in the delegate’s decision as having returned to Sri Lanka four times since claiming asylum and who the applicant last saw in 2023 in Sri Lanka. I accept that the Tribunal misconstrued the applicant’s oral evidence given at the Tribunal hearing and mistakenly treated the brother who the applicant said he had not seen in 10 years as one and the same as the brother who the applicant said, when his matter was before the delegate, that he last saw in 2023. The Tribunal’s characterisation of the applicant’s evidence in this regard as ‘directly contradictory’ does not have a proper evidentiary basis when the evidence before the Tribunal is properly understood. The finding that the applicant’s evidence was ‘directly contradictory’ is therefore irrational or illogical.
The Tribunal relied on the inconsistency it identified based on its misconstruction of the applicant’s evidence as part of the reason for making a more general adverse credibility finding against the applicant. The Tribunal addressed its concerns about the applicant’s credibility under the subheading ‘Credibility’. In the opening paragraph of this section, the Tribunal expressed its view that it did not find the applicant to be a credible or truthful witness, having regard to numerous inconsistencies in his evidence and noting that the applicant’s evidence was directly inconsistent with his earlier evidence on a number of occasions. The Tribunal then included seven sub-subheadings, under which it addressed the concerns summarised at [15] above. One of those sub-subheadings was ‘Brothers in Australia’ and it is under this sub-subheading that the reasoning and findings at [115]-[117] appears.
I acknowledge the Minister’s submission that the Tribunal’s credibility assessment of the applicant based on this fact was not determinative, but I cannot accept the submission as a basis for finding that the Tribunal’s error does not amount to jurisdictional error. The Tribunal’s adverse credit finding based on its misconstruction of the applicant’s evidence was, at the very least, one of seven key reasons for finding that the applicant was not a credible or truthful witness. It clearly formed part of the credibility assessment and, as submitted by Counsel for the applicant, the assessment of credibility is not linear: see VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79]; BJO18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189 at [101]. Had the Tribunal not misconstrued the applicant’s evidence, it may have viewed the applicant’s overall credibility more favourably (while still likely having some credibility concerns), and this may have caused it to view other aspects of the applicant’s evidence more favourably.
Of particular note in this regard is the Tribunal’s rejection of the applicant’s claim to have been bound to a tree and beaten by the CID. The only reasons given by the Tribunal for rejecting this claim are that the claim was not corroborated and that the applicant’s evidence had ‘proven to be unreliable in respect of other matters’. It can therefore be inferred that the Tribunal relied on its adverse credit finding about the applicant’s brothers, at least in part, in rejecting a critical aspect of the applicant’s claims for protection.
The Minister referred in his submissions to the Tribunal’s finding that the applicant was clear in his evidence to the Tribunal that he did not feel at risk in Sri Lanka until he posted on Facebook and there is no evidence to suggest that his brother’s circumstances have changed since that time. I do not consider this finding to be relevant in assessing whether the Tribunal’s misconstruction of the applicant’s evidence, and subsequent making of a finding that is not supported by rationally probative evidence, amounts to jurisdictional error. The significant impact of the Tribunal’s error relates to its assessment of the applicant’s credibility, rather than any issue relating to the applicant’s brother’s circumstances.
The Tribunal’s misconstruction of the applicant’s evidence, which in turn caused it to make an illogical adverse credit finding, amounts to jurisdictional error.
Publication of photos online: ground 4(c)
By ground 4(c), the applicant asserts that the Tribunal made unreasonable credit findings in relation to why the applicant published photos online.
The Tribunal found at [162]-[163] of its reasons:
162.The public display of LTTE symbols is banned in Sri Lanka. The Tribunal asked the applicant if he had considered that posting jewellery that depicts the LTTE symbol might be illegal in Sri Lanka and he said he didn’t think. He said that he didn’t expect there to be a problem with posting the pictures. He said he knew that LTTE symbols were banned but didn’t have a full understanding.
163.The Tribunal does not believe the applicant’s evidence in this regard. The impact of the roaring tiger emblem in Sri Lanka has been profound, and posting this symbol must always have drawn adverse attention from the authorities. The applicant’s evidence that he didn’t expect there would be a problem with posting a picture of this symbol is simply not credible.
The applicant referred to evidence he gave that:
On 28 March 2024 I also shared images of a gold pendant of the LTTE’s national flower, ‘Karthigai Poo’.
The applicant characterised this evidence as amounting to evidence that the applicant had in fact posted earlier pictures without difficulty and submitted that in these circumstances, it is unclear why the Tribunal found his evidence summarised at [162] of the Tribunal’s reasons to be ‘simply not credible’.
I do not accept the applicant’s submissions in relation to this ground. The Tribunal’s credibility finding the subject of this ground is not simply based on its earlier credibility findings. The finding at [163] is based specifically on the applicant posting a depiction of a tiger and the Tribunal’s expectation that the applicant would have understood the significance of that. That the applicant gave evidence that he recently posted a picture of a different symbol, which was not the subject of the Tribunal’s reasons at [163], does not make the Tribunal’s finding at [163] unreasonable.
Corroborative evidence: ground 5
By ground 5, the applicant asserts that the Tribunal failed to consider all of the corroborative evidence including in relation to whether a response from the authorities was likely and in relation to country information and the applicant’s claims to face detention and torture in relation to his imputed political opinion.
The applicant submitted that the transcript of the Tribunal hearing reveals that the Tribunal did not ask the applicant a single question about his claim that he was taken from his home at night tied to a tree and struck. The Tribunal did not weigh the applicant’s evidence in any way, either against country information or otherwise and the Tribunal did not accept that the event occurred on the basis that the applicant’s evidence has proven to be unreliable in respect of other matters and he had not advanced anything to corroborate this aspect of his story. The applicant submitted that it is not clear what else the Tribunal could expect the applicant could bring to corroborate his narrative and it is not clear how anything done in relation to the visitor visa could possibly impact on the question of whether the alleged events occurred. The applicant submitted that the lack of questioning is strange, given that the Tribunal found that a response from the authorities was expected from the applicant’s posting of LTTE symbols online. The applicant submitted that, in general, it is not appropriate to make findings without considering corroborative evidence and the corroboration includes, in this case, the likelihood of a response from the authorities.
The Minister interpreted this ground as an assertion that the lack of questioning of the applicant about aspects of his evidence gives rise to error because the evidence was corroborated elsewhere. The Minister submitted that the Tribunal considered the applicant’s claim that he was tied to a tree but ultimately did not accept it and the Tribunal’s reasoning demonstrated an evaluation of the claim against the evidence as a whole having regard to the credibility findings made and an assessment of the unreliability of the evidence relating to this incident. The Minister submitted that the Tribunal was not required to expressly refer to every piece of evidence before it. The Minister submitted that the Tribunal’s conclusion that the applicant would not be imputed with pro-LTTE views was supported by its finding that the applicant was not a supporter of the LTTE. The Tribunal also had regard to the timing of the incidents occurring after the visitor visa had been applied for.
The Tribunal’s rejection of the applicant’s claim to have been tried to a tree and beaten, insofar as that is based on other concerns with the applicant’s credibility, without the Tribunal questioning the applicant about that claim at all, causes some disquiet to the Court, particularly given the error found above that has impacted the Tribunal’s assessment of the applicant’s credibility. However, for the purposes of this ground, I only need to assess the ground before me. The ground alleges that the Tribunal erred by failing to consider the corroborating evidence that the authorities were likely to respond to the publication of LTTE symbols in assessing whether the applicant was tied to a tree and beaten.
The applicant has not established that the Tribunal made a jurisdictional error in this regard. The Tribunal was plainly aware of country information that suggested that authorities would be likely to respond to the posting of LTTE symbols online, having referred to it elsewhere in its reasons. It can be inferred that the Tribunal had regard to this information in accepting that the applicant was questioned by the authorities. There is no logical basis for concluding that the Tribunal was not aware of this information, or somehow put it out of its mind, when it did not accept that the applicant had been tied to a tree and beaten. The Tribunal’s rejection of the applicant’s claim was based on the lack of directly corroborating evidence as well as its general credibility concerns about the applicant.
Laws of general application: ground 6
By ground 6, the applicant asserts that the Tribunal made a jurisdictional error by failing to determine, as a matter of law, that the law prohibiting publication of LTTE symbols was discriminatory to the applicant for convention reasons.
The factual findings of the Tribunal in relation to the applicant’s posting of LTTE symbols in jewellery design by his brother on his Facebook page are summarised above at [58].
In finding that the Prevention of Terrorism Act was a law of general application, the Tribunal said at [167]-[168] of its reasons:
167.The Tribunal considers that the law against displaying LTTE symbols in Sri Lanka is reasonably appropriate and adapted. It is the equivalent of Australia’s Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023.
168.The penalties that the applicant has experienced appear to be directed at him for breaking a law of general application. That law of general application does not appear to have a discriminatory effect on him personally. The applicant’s evidence is that he is not, and never has been, a supporter of the LTTE. He has not been asked to inform against customers, and he has not been asked about people who have ordered the jewellery in the past.
The applicant submitted that the Tribunal did not identify the aim to which the law was ‘reasonably adapted and appropriate’. The applicant submitted that whether a law is properly characterised as a law of general application turns on identifying those non-members of the population to whom it applies. It is necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has discriminatory impact on members as a group recognised by the convention. In this regard, the applicant referred to Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 (Chen Shi Hai), where the High Court said at [19] and [21]:
19.Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group – for example, “black children”, as distinct from children generally –cannot properly be described in that way.…
21.To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non discriminatory, may impact differently in different people and, thus, operate discriminatory. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.
The applicant submitted that the question to be asked is in what circumstances would a non-Tamil have cause to display a LTTE symbol. The applicant submitted that there is no doubt the law is targeted at the Tamil population and the impact is felt among the Tamil population exclusively and is aimed at reducing solidarity among members. The applicant further submitted that, in any event, the persecution suffered by the applicant is not for displaying the symbols. He was not charged for it, so the priority for the authorities is not the legislation. He was persecuted because it displayed that he was sympathetic to the cause.
The Minister submitted that the Tribunal reached its conclusion that the Prevention of Terrorism Act was not being selectively applied in a discriminatory way and was rather a law of general application based on the general purpose of the Act encountering terrorism as being appropriate and adapted to achieving a legitimate object. The Minister further submitted that, over two decades ago, the Full Court rejected a similar submission to ground 6 accepted the Tribunal’s finding that the Prevention of Terrorism Act was appropriate and adapted to the objects it was pursuing and did not constitute persecution: see MZAWP v Minister for Immigration and Multicultural Affairs (2005) 85 ALD 41; [2005] FCAFC 335 (MZAWP).
In assessing this ground, I have had regard to Chen Shi Hai and Weheliye v Minister for Immigration and Multicultural Affairs [2001] FCA 1222, in which Goldberg J said at [51]:
There are two aspects to a consideration of whether punishment under a law of general application may constitute persecution for a Convention reason because it is discriminatory. The first aspect is to determine whether the law is in fact of general application and is not a law which targets or applies only to a particular section or group of the population. The second aspect is to determine whether, if the law is of general application to the whole of the population, it is nevertheless applied and administered in a discriminatory manner.
I do not consider that the Tribunal has made any jurisdictional error in finding that the Prevention of Terrorism Act is a law of general application. It has asked itself the relevant questions and found that the Prevention of Terrorism Act is a law of general application and that it is not applied in a discriminatory manner. Although based on different reasoning of the Tribunal, this finding is consistent with that in MZAWP.
To the extent that the applicant’s submission is that he was not persecuted because of the publication of symbols but rather as an imputed LTTE supporter, this is not the subject of the Tribunal’s finding in relation to the Prevention of Terrorism Act. The Tribunal rejected the applicant’s claims to be an imputed LTTE supporter. The Tribunal accepted, however, that the applicant had published LTTE symbols online and in the relevant parts of its reasons was considering whether the applicant may face harm for the action that it accepted he had undertaken if he is returned to Sri Lanka.
CONCLUSION
In circumstances where I have found that the Tribunal made a jurisdictional error, it is appropriate to issue a writ of certiorari to quash the Tribunal decision. The Tribunal no longer exists and pursuant to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Court may order the Administrative Review Tribunal to do anything that it could previously have ordered the Tribunal to do. It is appropriate to issue a writ of mandamus, directed to the Administrative Review Tribunal, to require it to reconsider the matter according to law.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 May 2025
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