Federal Court of Australia

CSD17 v Minister for Immigration and Citizenship [2025] FCA 935

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration and Citizenship.

2.    The appeal be allowed.

3.    Set aside the orders made on 24 June 2021 and, in place of those orders, order that there issue absolute in the first instance:

(a)    a writ of certiorari quashing the second respondent’s decision of 18 May 2017;

(b)    a writ of mandamus directed to the second respondent to exercise the powers under Pt 7AA of the Migration Act 1958 (Cth) according to law.

4.    The respondent pay the appellant’s costs of this appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    The appellant appeals from orders of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Immigration Assessment Authority: CSD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1416. The appellant was not legally represented before the Federal Circuit Court.

2    The appellant relies on three grounds of appeal, set out in an Amended Notice of Appeal filed on 2 October 2023. These raise contentions of jurisdictional error on the part of the Authority which were not raised before, and were not considered by, the Federal Circuit Court. The respondent does not object to the appellant’s reliance on the Amended Notice of Appeal.

FACTUAL BACKGROUND

3    The appellant is a citizen of Sri Lanka who arrived in Australia on 20 September 2012. He claimed to fear serious harm in Sri Lanka. This claim was based on his family’s connections or perceived connections with the Tamil National Alliance (TNA) and the Liberation Tigers of Tamil Elam (LTTE).

4    The appellant made a Statutory Declaration on 14 August 2013. He stated, amongst other things, that his uncle was shot by the Sri Lankan army while he was fishing in 1987 and that another uncle was taken on suspicion of having connections to the LTTE:

8.     Three of my family members have been killed in the conflict in Sri Lanka. In 1987, my uncle was shot by the Sri Lankan army while he was fishing. In 1990, the Indian army came to the country. Many people were killed in some shooting. In 1998, my uncle was taken by the government on suspicion of being part of the LTTE.

5    The appellant also set out in his Statutory Declaration that his family’s support for the TNA led to it being imputed that the family had connections with and supported the LTTE:

9.    My family are supporters of the TNA (Tamil National Alliance) party. They are the only party that really helps the Tamils.

…

22.     On 25 August 2012, two people came to our house. I wasn't home. My grandmother was home. They were armed and they asked for me. My father came home while they were there. He asked them what they wanted. They had an argument. They said ‘You are supporting the TNA. Are you supporting the LTTE?’

28.     They will do this to me because my family are strong and long-term supporters of the TNA. They know that we help the TNA. Because of this, they think that we have a connection to the LTTE.

29.    They might also think we support the LTTE because some of our family members were killed in the conflict many years ago. We have made complaints about this.

30.     They want us to stop our support for the TNA. They might do serious things to me to send a message to the whole village.

6    On 23 September 2015, the appellant applied for a Safe Haven Enterprise Visa (SHEV). The application was accompanied by lengthy submissions dated 23 September 2015 (Visa Submissions). In the Visa Submissions, the appellant referred to family members who had been killed:

6.     Four of my family members have been killed in the ethnic conflict that engulfed Sri Lanka over 30 years. In 1987 my uncle was shot by the Sri Lankan army while he was fishing. In 1990 my grandmother was killed in a shooting by the security forces and in 1998, my uncle was taken into custody by the government troops on suspicion of being involved with the LTTE and was never seen again. My paternal uncle [Y] was killed by unknown armed personal [sic] at his village in [Location Z].

7    In the Visa Submissions, the appellant referred to his family’s support for the TNA and the fact that he had been accused of “being a Tiger” (AB148, 150):

12.     My family were strong supporters of the Tamil National Alliance Party (TNA), as they were the only party that looked after the interests of Tamils in Sri Lanka.

…

18.     In the area that my family and I resided, was that on one side of the lagoon was controlled by the Sri Lankan army and Karuna faction and on the other side was the LTTE. We lived on the government controlled side of the lagoon. Therefore if there were any incidents in Colombo or Batticaloa such as bombings or killings, there were search and round up operations conducted of all Tamil homes and all the young Tamil males such as myself were targeted. On many occasions I was brutally treated by the security services, who would manhandle me by hitting me with their gun butts, push me onto the ground and assault me. On those occasions when I had to go through checkpoints, I would be asked for id, forced to wait in the hot sum, sometimes for hours, whilst they checked my documents. I would be asked to kneel and put my hands behind my head. You would ask for some water a[n]d they deny your request and on occasions if your hands were tired, they would come and kick and beat you. They would abuse me in filthy language and always accuse me of being a Tiger.

19.    There were at least three occasions, when I was taken into custody for questioning after one of these bombings. I would be interrogated for hours about my movements and my friends and then left in a cell for hours and accused of being a Tiger…

8    The appellant also stated in his Visa Submissions that his departure to Australia was precipitated by an incident that occurred in 2012 during which his father was asked about whether he was supporting the LTTE. It was these events which led the appellant’s father to decide that it was too dangerous for the appellant to stay at home. The Visa Submissions included (AB152–3):

29.     On 25 August 2012, two people attended our house. I was not at home. My grandmother was at home. They were armed and asked for me. My father came home whilst they were at the house. He asked them what they wanted and they then had an argument. They said are you supporting the TNA, are you supporting the LTTE.

30.     My father told them that he would make a complaint to the police, given they came armed to the house. They told him they did not care and he was free to make a complaint. They threatened that they would kill him and myself. They openly admitted that the army knew they had brought weapons into the village and the army was not going to do anything about it.

31.     My father decided that it was too dangerous for me to stay at home and told me to stay at a Roman Catholic Church and at my aunt’s house which was in a different village. My mother remarked that we have lost 4 family members and did not want to lose me, her son.

9    The Visa Submissions included the following at one of two paragraphs numbered [45(d)]:

45.     DOES THIS APPLICANT MEET THE REFUGEE CRITERION

…

(d) On the basis of this information, there appears to be a question over whether the applicant’s circumstances as a person suspected to have LITE affiliations – In 1987, my uncle who was suspected of having connections to the LITE was shot by the Sri Lankan army while he was fishing. My grandmother who was also suspected of providing assistance to the LITE was shot by the IPKF. My maternal uncle was recruited and indoctrinated by the LTTE and he became a strong LTTE person and in 1998, he went missing and to this day, we do not know what happened to him. I was a strong TNA supporter with strong links to the party and because of the work I did on behalf of the party, it was imputed that I also supported the LTTE (rather than a high profile former LTTE member) alone would lead to a real chance that he would face serious harm if he returns to his village in Batticaloa, now or in the reasonably foreseeable future.

However, when considered cumulatively with the fact that he has departed Sri Lanka illegally and the potential consequences of the investigations stemming from his illegal departure, the Tribunal should be satisfied that the risk of Convention based persecution in the applicant’s circumstances is elevated to a real chance.

10    The appellant attended a protection visa interview on 18 December 2015, with a lawyer (who was also a migration agent): Exhibit 1. An interpreter was also present. A transcript of this interview and the audio recording was introduced into evidence on this appeal in circumstances described further below.

11    On 20 October 2016, a delegate of the Minister decided to refuse to grant the appellant a SHEV: AB291. The delegate described the claims in the following way at AB292:

•    The applicant was born in Batticaloa in the Eastern province of Sri Lanka and is of Tamil ethnicity,

•    The applicant’s uncle was forcibly recruited by the LTTE and disappeared in 1998. During the applicant’s protection visa interview he produced a copy of his uncle’s death certificate,

•    The applicant and his family lived in a Sri Lankan Army (SLA) controlled village, as such every time there was a security incident such as a bomb blast, the SLA would round up all the young Tamil men for questioning where he claims they were assaulted and tortured. The applicant claims that he was detained on three occasions as a result of these round ups and was released after his mother paid a bribe.

•    The applicant was approached by the Karuna and Pillyan Group in 2010/2011 demanding that he join with them. When the applicant refused, he was accused of being an LTTE member and assaulted. The applicant claims that his parents paid money to the groups in order to secure his safety and continued to do so in exchange for his safety.

•    In August 2012, armed men attended the applicant’s home at night whilst he was not home and questioned his grandmother and father about his whereabouts. The applicant claims that his father was threatened and was told that the applicant would be killed if he was found. The applicant claims that this was a result of him campaigning for the Tamil National Alliance (TNA) in spite of being approached to assist with campaigning for the ruling People’s Alliance (PA) at the time.

•    As a result of this incident in August 2012, the applicant feared for his life and departed Sri Lanka illegally by boat to Australia.

12    When addressing whether there was any imputed link or support of the LTTE, the delegate stated that “[t]he [appellant] claims that he fears harm because of his imputed LTTE familial links and perceived support of the LTTE” and referred to the appellant’s uncle who was forcibly recruited by the LTTE and who had not been seen since 1998: AB293. It did not refer specifically to any other family member. In relation to that uncle, the delegate stated (AB294):

I … accept that the applicant had an uncle who was forcibly recruited to the LTTE; and, due to the applicant’s Tamil ethnicity and the geographic and demographic characteristics of his home village, came to the adverse attention of security forces on multiple occasions including being taken into custody.

13    The delegate accepted that the appellant faced assault and harassment as a result of refusing to join the Karuna and Pillyan political parties in 2010/2011: AB295.

14    In relation to “TNA political opinion/August 2012 incident”, the delegate stated (AB295):

I accept there was widespread generalised violence in relation to the lead up to the 2012 provincial elections. I accept that the applicant and his family were prominent TNA supporters due to the applicant’s consistency of this claim. Whilst the applicant’s answers during the PV interview were somewhat inconsistent and lacking in detail, based on the supporting country information, I accept that it was plausible armed men visited the applicant’s home in search of him as a result of his refusal to assist other political groups and subsequently assisting the TNA.

15    The delegate’s findings included that the delegate was not satisfied that the appellant:

(a)    “faces a real chance of serious harm in the reasonably foreseeable future in Sri Lanka on the basis of his Tamil race or his origins as a Tamil from the Northern Province”: AB297;

(b)    “will have a real chance of facing serious harm by the Karuna or Pillyan groups or other political groups in the reasonably foreseeable future because of his imputed LTTE support”: AB297;

(c)    held a well-founded fear of persecution on the basis of him being a TNA supporter, because there “is not a real chance that the [appellant] will be pursued and seriously harmed by any persons in Sri Lanka on account of his association with the TNA”: AB298;

(d)    held a well-founded fear of persecution on account of being a failed (Tamil) asylum seeker who departed Sri Lanka illegally: AB300.

16    On 31 October 2016, the decision of the delegate was referred to the Authority for review: AB306.

17    The Authority summarised the appellant’s claims in the following way at A[7] (CB320):

•    He is a Tamil Hindu who was born in the [Location X] district in the Eastern Province of Sri Lanka. He lived all his life in the same village and his parents and siblings continue to reside in the family home.

•    His uncle was forcibly recruited by the LTTE and disappeared in 1998. The family has obtained a death certificate for this uncle. Two more of his uncles and his grandmother were killed in shootings between 1987 and 1998.

•    The Sri Lankan Army (SLA) controlled the applicant’s village. Whenever there was an incident with the LTTE, the SLA would round up people from the village. The applicant was detained on three occasions and beaten. He was released because his mother could pay a bribe.

•    His family are known as LTTE supporters and continue to be targeted by the authorities when anything happens.

•    In 2007, people in a van tried to kidnap some students including the applicant. He was able to escape.

•    His family support the TNA and his father has many friends who are involved in it. In 2011, he was approached by members of the Karuna or Pillayan groups and told to join them. He refused and they kidnapped and assaulted him. His parents were able to use their influence with the police and pay bribes to get him released. They have continued paying bribes to the group.

•    In 2011, his family organised a petition against the building of a SLA camp in the village.

•    He assisted the TNA during the 2012 election campaign, including in his role as the secretary of a local sports club. The club refused to assist opposition parties to organise meetings but helped the TNA arrange a meeting.

•    On 25 August 2012, armed men came to the family home at night. The applicant’s grandmother was the only person at home and the men asked her about the applicant. When the applicant’s father arrived home, he was threatened and the men told him they will kill the applicant if they find him.

•    The applicant’s father arranged for the applicant to escape Sri Lanka.

•    On 18 December 2013, armed men came to the family home looking for the applicant again. The men assaulted his father and threatened the family.

18    On 18 May 2017, the Authority affirmed the decision of the delegate. The Authority accepted that “the [appellant] was subject to general round ups” by the SLA, but was not satisfied that he was detained, identified and tortured as he has claimed: at A[15]. The Authority found “that the claims in relation to detention and torture by the SLA, kidnap and torture by the Karuna/Pillayan groups and an adverse profile arising from the petition [were] not plausible or credible”; the Authority was “not satisfied that these events occurred or that the [appellant] faced a real chance of serious harm arising in any way from these events”: at A[19].

19    The Authority addressed “support for / association with the LTTE” from A[20] to [25]. In considering this aspect of the appellant’s claim, the Authority referred to the appellant’s uncle who disappeared in 1998 and stated it was “prepared to accept that the [appellant]’s uncle was involved with the LTTE and is missing, most likely deceased”: at A[22]. The Authority stated that “[t]here is no evidence before me that the [appellant] or any member of his family has suffered any harassment, ill-treatment or discrimination on the basis of their association with this uncle”: at A[22]. The Authority stated it was therefore “satisfied that the [appellant] has not been and will not now be imputed with any support for the LTTE because of his association with his uncle”.

20    The Authority stated at A[46]:

[46]    I find that the applicant does not have a profile as a result of any real or imputed support for, membership of or association to the LTTE, including any familial associations, or arising from his support for the TNA. Considering all of the evidence and information before me, I am satisfied that the applicant does not face a real chance of serious harm on the basis of being a Tamil, a young Tamil male, a Tamil from the East or a Hindu.

21    The appellant sought judicial review of the Authority’s decision on 20 June 2017. The primary judge dismissed the application on 24 June 2021. As mentioned, the issues raised on this appeal were not raised before the primary judge. It is unnecessary to recount what occurred.

THE APPEAL

22    The appellant filed submissions prepared by his counsel, who appears on the appeal, at the same time as he filed his Amended Notice of Appeal.

23    By Ground 1, the appellant contends that the Authority erred in finding that he did not face a real chance of serious harm:

The IAA erred when it was not satisfied that the applicant continues to face a real chance of serious harm on the basis of his past political opinion or support for the TNA, should he re-join the sports club and continue to assist it with political activities, or should he continue to support the TNA, and erred when it was not satisfied that his low level profile and political activities has or will lead to any imputed support for the LTTE, pro-Tamil, anti-government or separatist activities.

24    Ground 1 is a statement of when the Authority was contended to have erred, or what its erroneous conclusion was, rather than an identification of the contended error in reaching the relevant conclusion.

25    By Ground 2, the appellant contended that the Authority’s decision was “unreasonable” or that it “failed to consider relevant material” in two ways:

a.    The IAA was not satisfied the Applicant was asserting facts concerning 2 of his uncles and grandmother, who all had LTTE connections, were shot by the SLA/[Indian Peace Keeping Force] or went missing as part of his claims [23]-[24], when the IAA misunderstood what the applicant’s lawyer said concerning ‘the information’ at [24] and particularly when the claims of their deaths in the conflict had been made in the applicant’s application [CB70]-[CB74], such non satisfaction being unreasonable;

b.    The IAA erred when it failed to properly consider the likely outcome should the applicant re-join the sports club and continue to assist it with political activities, or should he continue to support the TNA, since the material before the IAA, which it accepted, was that the 2012 event was likely connected to the applicant’s support of the TNA and it must be seen as likely in respect of the 2013 event, event, since:

i.    the IAA was satisfied following that July 2012 meeting, armed men came to the applicant’s home and made threats [33];

ii.    the IAA was satisfied that these men were likely part of or linked to the ruling party or another group opposed to the TNA [33]; and

iii.    the IAA was prepared to accept that unknown men returned to the family home in December 2013, threatened and assaulted the applicant’s father and asked about the applicant [35]

iv.    the IAA was satisfied that the applicant and his father were threatened because of their personal involvement with the TNA [33],

there by raising the possibility that unknown men would similarly harass, threaten and assault the Applicant should there be another election in which the TNA stands a candidate and were he to be returned to Sri Lanka.

26    The first way in which the Authority was said to have erred (Ground 2(a)) focused attention on what was said at A[23] and [24], which is as follows (emphasis omitted):

[23]    The applicant claims, and I accept that two other uncles and a grandmother have suffered violent deaths during the civil conflict. Although the applicant has never claimed that these persons had involvement with the LTTE, I note that the statement of claim / submission attached to his SHEV application contains the following paragraph, appearing under the heading “45. Does this Applicant meet the Refugee Criterion”, following a discussion of country information:

(d) On the basis of this information, there appears to be a question over whether the applicant’s circumstances as a person suspected to have LTTE affiliations - In 1987, my uncle who was suspected of having connections to the LTTE was shot by the Sri Lankan army while he was fishing. My grandmother who was also suspected of providing assistance to the LTTE was shot by the IPKF. My maternal uncle was recruited and indoctrinated by the LTTE and he became a strong LTTE person and in 1998, he went missing and to this day, we do not know what happened to him. I was a strong TNA supporter with strong links to the party and because of the work I did on behalf of the party, it was imputed that I also supported the LTTE (rather than a high profile former LTTE member) alone would lead to a real chance that he would face serious harm if he returns to his village in Batticaloa, now or in the reasonably foreseeable future.

However, when considered cumulatively with the fact that he has departed Sri Lanka illegally and the potential consequences of the investigations stemming from his illegal departure, the Tribunal should be satisfied that the risk of Convention based persecution in the applicant’s circumstances is elevated to a real chance.

[24]    The Departmental officer raised this issue with the applicant during the interview and noted the similarities with his own factual circumstances. The applicant’s lawyer said that this information was from “another decision” and was not “directly related” to the applicant. It was there to support his claims. The officer asked the lawyer to confirm this and the lawyer repeated that it was information about a similar situation and was not directly related to the applicant. This exchange was translated to the applicant and he did not dispute the lawyer’s comments. I take into account the comments from the lawyer, the fact that the applicant has not previously claimed that other relatives had been killed because of associations or suspicions, and the fact that the applicant made no such claims at the interview when the information was raised. I am not satisfied that the applicant is asserting these facts as part of his claims. Furthermore, the applicant has not claimed that he or any other member of his family has been harassed, detained or questioned in relation to his grandmother or any other uncles, for any reason including suspected LTTE involvement. I am not satisfied that his family are known as LTTE supporters. I am satisfied that the applicant has not been and will not now be imputed with any support for the LTTE because of these familial associations.

27    The appellant contended that the Authority misunderstood his claims and that it was unreasonable to conclude that [45(d)] was not asserting facts as part of his claims.

28    This appeal was first listed for hearing on 27 March 2025. At the hearing, the Court drew to the parties’ attention the fact that the appellant’s Visa Submissions contained two paragraphs styled [45(d)] and inquired whether this might be relevant, because one addressed general circumstances (AB164), and the second appeared on its face to speak directly about the appellant’s circumstances (AB173). The Court raised the possibility that, through mistake, the Authority may have misunderstood the appellant’s claims. The first [45(d)] stated (reference and emphasis omitted):

In August 2011, the Research Directorate of the Immigration and Refugee Board of Canada (IRB) published a research response which provided information from a number of sources on the treatment of Tamil returnees, including failed asylum seekers, on their return to Sri Lanka. (Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport.)

29    Ultimately, the hearing on 27 March 2025 was adjourned for further hearing. A transcript and audio recording were tendered at the resumed hearing of the appeal on 8 August 2025. The transcript contains some inaccuracies (usually by way of omission) compared to the audio recording, including at the part of the interview where questions were asked concerning [45(d)]. The Authority only had the audio recording before it.

30    Two matters of context should be mentioned. First, the interview participants were, at the relevant time, attempting to ensure that the interview could finish within time for the appellant’s lawyer to attend a second interview at 1.15 pm: T32.34–8, 38.40–39.9. This resulted, for example, in the interviewing delegate affording the appellant an opportunity to say anything else he might wish in relation to his activities with the TNA in terms: “Just give me a snapshot in like 30 seconds to one minute, just an overview?”: at T39.17–8.

31    Secondly, during that part of the interview in which [45(d)] was raised (from T40.44), the interviewing delegate was putting to the appellant various differences which the interviewing delegate perceived to exist between the various accounts of the relevant events which the appellant had given. The interviewing delegate evidently considered that [45(d)] (second appearing) might be understood as containing differences to earlier accounts which had been given. In particular, it would seem that the interviewing delegate was considering whether [45(d)] – if it was speaking about the appellant’s circumstances and claims – was the only time that the appellant had expressly asserted that: (a) his uncle, who was shot in 1987 whilst fishing, was suspected of having connections with the LTTE; and (b) his grandmother who, was shot in 1990, was suspected of providing assistance to the LTTE.

32    It is not clear that the account in [45(d)] (second appearing) was substantially different from the appellant’s claims and evidence. The process by which visa applicants provide accounts on numerous occasions when they are in materially different personal circumstances, and the care which is needed in examining whether there are differences of significance, was referred to in AGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1572 at [41]–[45], [51]. In any event, there is no real doubt that the interviewing delegate was intending to explore the possibility that there were differences between [45(d)] and earlier accounts.

33    Having listened to the audio recording, it appears likely that the appellant’s lawyer was referring to the correct [45(d)] when stating that it was not directly related to the appellant’s claims. His response – to the effect that the paragraph did not relate directly to the appellant – is impossible to reconcile with the terms of [45(d)]. Nevertheless, although not entirely clear, that appears to be the effect of what he stated. Accordingly, the interviewing delegate and the appellant’s lawyer were referring to the same [45(d)] at the critical time.

34    At A[24], the Authority stated that it was not satisfied that what was stated in [45(d)] (second appearing) formed a part of the appellant’s claims because of the comments which had been made by the lawyer and on the basis that:

(a)    the exchange between the interviewing delegate and the lawyer was translated to the appellant and he did not dispute the lawyer’s comments;

(b)    the appellant had not previously claimed that other relatives had been killed because of associations or suspicions; and

(c)    the appellant made no such claims at the interview when the information was raised.

35    As to (a), the exchange between the interviewing delegate and the lawyer was not translated. What was translated was only the interviewing delegate’s summary of the exchange which had occurred. The exchange between the interviewing delegate and the lawyer (which was not translated) referred to some of the similarities between the appellant’s case and the account provided in [45(d)]. After the exchange between the interview officer and the lawyer, the officer explained that she had been asking whether the paragraph was specific to the appellant and that the lawyer had stated that it was “about a similar situation, so not necessarily specifically about your exact circumstances”: T42.29–41. Without knowing the content of the exchange, or the content of [45(d)], the officer’s summary and the appellant’s lack of response could not be understood as a confirmation by the appellant of what the lawyer had stated. Paragraph [45(d)] (second appearing) was not translated to the appellant. If the exchange had been translated (which it was not), it could only have been fully understood if [45(d)] had also been translated. Without being apprised of the content of [45(d)], the significance of the interviewing delegate’s summary of her exchange with the lawyer could not have been understood by the appellant. It is, accordingly, unsurprising that the appellant “did not dispute the lawyer’s comments”: A[24].

36    Paragraph 45(d), according to its express terms, appeared to provide the appellant’s account of events concerning members of his family, perhaps combined with what he (or his lawyer) submitted should be inferred from the events which occurred. It necessarily follows from the grounds of appeal that the appellant contends that [45(d)] (second appearing) related to his claims and circumstances. Counsel for the appellant confirmed that was so on the appeal.

37    As to (b), on the material before this Court, [45(d)] is the clearest identification of an express contention that a second uncle and the grandmother had been killed because of suspicions of involvement with, or providing assistance to, the LTTE. At times, the Minister’s submissions bordered on suggesting this was inconsistent with earlier claims.

38    The appellant’s claims emerged clearly from the material. One uncle (who disappeared in 1998) was actually involved with the LTTE. Quite apart from [45(d)], other material contained clear claims that the appellant’s family generally were suspected of being involved with the LTTE, including (but not only) because of the actual involvement of one uncle.

39    As to (c), this conclusion is based on the erroneous conclusion that the content of [45(d)] was translated to the appellant at the relevant time such that he could respond, but this did not occur.

40    Accordingly, the Authority’s conclusions about [45(d)] not being a part of the appellant’s claims suffers from faulty reasoning.

41    In the context of addressing Ground 2(a), and the concern raised that the Authority may have misunderstood a central aspect of the appellant’s claims, counsel for the Minister raised the Authority’s reasoning in A[22], which concerned – amongst other things – the appellant’s uncle, who was in fact involved with the LTTE and who disappeared (presumed killed) in 1998. The Authority stated that “[t]here is no evidence before me that the [appellant] or any member of his family has suffered any harassment, ill-treatment or discrimination on the basis of their association with [the uncle killed in 1998]”: at A[22].

42    Having been taken to A[22], the Court inquired whether the Authority’s observation – that there was “no evidence before me that the [appellant] or any member of his family has suffered any harassment, ill-treatment or discrimination on the basis of their association with [the uncle killed in 1998]” – was correct (in light of substantial statements by the appellant to that effect) and, if not, whether that sentence also supported a conclusion that the Authority had misunderstood a central element of the appellant’s claims and evidence.

43    In an interesting forensic decision, the Minister described the view that the words “there was no evidence before me” might mean what they literally say as both “absurd” and implausible: T17.32, 19.27–8. The Minister submitted that the statement that “there was no evidence before me” should be understood as meaning that the Authority rejected the claims, not that it considered that “there was no evidence before” the Authority concerning the specific matter.

44    Reading the sentence at A[22] in the context of the whole of the reasoning, it is clear that the Authority intended to convey that there was no evidence before it that the appellant or his family had suffered any harassment, ill-treatment or discrimination on the basis of their association with the uncle killed in 1998, consistently with the literal meaning of the words used.

45    Contrary to the Authority’s understanding, there was a body of material which contended that the appellant and members of his family were targeted by reason of the family’s perceived association with the LTTE arising (in part) because of the uncle’s association with the LTTE.

46    Thus, for example, at his interview, the appellant repeatedly stated that those who detained him stated that they knew his family was “involved” with the LTTE – for example: T20.23, 20.40, 22.14, 28.42. This was expressly linked to the relevant uncle’s involvement with the LTTE, including at T22.12. At T15.28–35, the appellant (by the interpreter) stated:

So one of my uncles was involved in LTTE and we say disappeared - he was disappeared like, yeah, he got disappeared. And so because of that, like they have tagged our family like LTTE family sort of. So any incidents happen in our area, like first people to be - like we are the first people to be targeted by the forces military because they say that the LTTE family will know, that is how we are treated.

47    In addressing a time when he was allegedly detained in 2011, the appellant referred to the fact that it was perceived that his family and the relevant uncle were involved with the LTTE. He stated at T23.27–32:

So at that time what they did was they asked us to go and support their party, but we refused because we were supporters of TNA. So then Karuna Group or army, everybody knows that our family regarding our family and how we involved with the LTTE and my uncle’s involvement with the LTTE, they know very well.

48    As noted earlier, the appellant’s Statutory Declaration included at [22]:

On 25 August 2012, two people came to our house. I wasn’t home. My grandmother was home. They were armed and they asked for me. My father came home while they were there. He asked them what they wanted. They had an argument. They said ‘You are supporting the TNA. Are you supporting the LTTE?’

49    The appellant stated in his Visa Submission that his departure to Australia was precipitated by an incident that occurred on 25 August 2012 during which his father was asked about whether he was supporting the LTTE. It was these events which led the appellant’s father to decide that it was too dangerous for the appellant to stay at home. The Visa Submissions included:

On 25 August 2012, two people attended our house. I was not at home. My grandmother was at home. They were armed and asked for me. My father came home whilst they were at the house. He asked them what they wanted and they then had an argument. They said are you supporting the TNA, are you supporting the LTTE.

50    For the reasons given next, it is not necessary to decide whether it was legally unreasonable to reach the conclusion which the Authority did concerning [45(d)].

51    The Authority misunderstood the appellant’s claims and evidence in material and important ways such that it did not carry out a review of the kind contemplated by Pt 7AA of the Migration Act 1958 (Cth) – see: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [113]. The appellant had articulated a claim that his family were known as (ie, considered to be) supporters of the LTTE (as was recognised in the fourth bullet point of the summary of claims at A[7]) and that the family was suspected of links to, and associations with, the LTTE, including (but not only) because of the actual involvement of one of his uncles with the LTTE. Contrary to the Authority’s conclusion at A[22], there was a substantial body of material which supported the appellant’s claim that the appellant and members of his family were targeted by reason of the family’s perceived association with the LTTE arising (at least in part) because of the actual involvement with the LTTE on the part of the uncle who disappeared in 1998. The claim at [45(d)] – that two other deceased relatives were suspected of involvement with the LTTE – was not considered to form a part of the appellant’s claims, despite the evident similarities, and the consistency of the account, with the appellant’s earlier accounts and claims.

52    It might also be noted that the Authority, in summarising the appellant’s claims at A[7] in relation to the events of 25 August 2012 which immediately preceded the appellant’s departure from Sri Lanka, did not mention that those events involved an attack during which the appellant’s father was asked whether he was supporting the LTTE. This was also not mentioned when the events were addressed in more detail at A[28] and [30].

53    Given that the Authority misunderstood central and material aspects of the claims and material, the review was not a review of the kind contemplated by Pt 7AA. In failing to conduct a review of the kind contemplated, the Authority failed to complete the exercise of its jurisdiction. If materiality is a separate necessary ingredient in establishing jurisdictional error in these circumstances, there was a realistic possibility that – had the Authority properly understood and addressed the claims made – the decision could have been different.

54    It is unnecessary to address Ground 2(b). Ground 3 was abandoned during argument.

CONCLUSION

55    The appeal should be allowed with costs.

Associate:     

Dated:    11 August 2025