Federal Court of Australia

BRL17 v Minister for Immigration and Citizenship [2025] FCA 1083

ORDERS

THE COURT ORDERS THAT:

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

2. To the extent necessary, the time to file a notice of appeal be extended to 26 July 2023.

3. The application for leave to adduce additional evidence on the appeal be allowed.

4. Leave be granted to rely on a proposed amended notice of appeal in relation to proposed Ground 1, but otherwise be refused.

5. The appeal be dismissed with costs, such costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1 In substance this is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Primary Court) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Review Tribunal): BRL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1086 (primary judgment or PJ). By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (now known as the Minister for Immigration and Citizenship) refusing to grant the appellant a protection (Class XA) visa.

2 The appellant is a citizen of Sri Lanka of Tamil ethnicity. The appellant arrived in Australia on 22 July 2012 and applied for a protection visa on 12 December 2012.

3 The appellant seeks an extension of time in which to file a notice of appeal. The Minister consents to the application for an extension of time. The application for an extension of time arises in circumstances where the appellant emailed a Notice of Appeal to the Court’s registry within time, and the registry has confirmed that it was received by email within time, but the appellant’s documents were not thereafter processed, that is to say filed. I will make a remedial order to address this circumstance.

4 The appellant also seeks leave to rely on a notice of appeal in amended form which includes three grounds, two of which were not raised below, and also to adduce further evidence. The Minister opposed the grant of leave for the two new grounds of appeal. The hearing was conducted on the basis that I would receive the additional evidence for the purpose of the argument which would extend to argument on the new grounds of appeal with a view to determining both these applications at the time I delivered reasons on the appeal. I will refer to the most recent iteration of the notice of appeal as the Amended Notice of Appeal.

5 At the hearing of the appeal, the appellant and the Minister were both represented by counsel. The second respondent, the Tribunal, filed a submitting notice save as to costs.

6 I will address the procedural history and then the respective decisions of the Tribunal and the Primary Court culminating in this appeal, before addressing the grounds raised by the Amended Notice of Appeal. For convenience, I will refer to the applicant and would be appellant as the appellant throughout, notwithstanding that in the earlier proceedings he was the applicant.

PROCEDURAL BACKGROUND

The delegate’s decision

7 On 26 November 2013, the appellant attended an interview with a delegate.

8 On 9 December 2013, the appellant’s migration agent sent a post-interview submission to the delegate. Broadly, the following four topics were addressed in the post-interview submission:

(1) the appellant believed he was targeted because he was suspected of being linked to the Liberation Tigers of Tamil Eelam (LTTE) by members of the Karuna group, a paramilitary group described as being allied to Sri Lanka’s security forces, that is, the army and the police;

(2) the appellant was at risk of persecution on return because he was suspected of having links to the LTTE;

(3) the appellant was at risk of persecution on return because he was a failed asylum seeker; and

(4) there was nowhere within Sri Lanka to which the appellant could safely relocate if he was returned.

9 The information included in the post-interview submission was in the main based on country information that ranged in date from October 2010 to May 2013.

10 On 17 November 2014, the appellant’s application for a protection visa was refused by the delegate.

The proceeding in the Tribunal

11 On 5 December 2014, the appellant applied to the Tribunal for review of the delegate’s decision.

12 On 31 March 2016, the appellant was invited to, and attended, a hearing before the Tribunal. The appellant was represented by his registered migration agent at that hearing. The appellant was also assisted by an interpreter.

13 As a result of an administrative oversight, the Tribunal was not supplied with a copy of the post-interview submission that the appellant had provided to the delegate. The post-interview submission informs Ground 1 of the Amended Notice of Appeal.

14 For the purpose of his interlocutory applications, the appellant relies on a transcription of an audio recording of the hearing before the Tribunal on 31 March 2016 which has been prepared by the appellant’s solicitors. The transcript is annexed to the affidavit of Lisa Marie Quinn, solicitor, affirmed on 14 March 2025. I note that a partial transcript was annexed to an earlier affidavit of Ms Quinn affirmed on 26 February 2025. The later transcript relevantly contains the introductory remarks made by the Tribunal whereas the earlier transcript did not. In referring to the transcript in these reasons, I am referring to the later, more fulsome transcription of the audio recording of the hearing before the Tribunal. In doing so, I note that in this later and more fulsome transcription, there are sections which have been described as “inaudible” which have not been transcribed. The Minister does not object to the affidavits annexing the transcripts.

15 On 20 March 2025, the parties provided a joint note which clarified an issue raised in the course of the hearing as to whether two questions transcribed consecutively were both posed by the Tribunal or whether the latter question, “At that time, at the bus stop?”, was a response given by the appellant. The joint note stated that Ms Quinn had replayed the audio recording and confirmed that both questions were posed by the Tribunal to the appellant. This joint note will be marked as Exhibit 1 on the interlocutory applications.

16 In considering Ground 1, I will address the extent to which the topics canvassed in the post-interview submission were the subject of submissions before the Tribunal and were addressed in the Tribunal’s reasons notwithstanding that the post-interview submission itself was inadvertently omitted from the materials made available to the Tribunal. I will also address the extent to which the topics covered in the post-interview submission were canvassed by the Tribunal by reference to country information that was more current than that relied on in the post-interview submission.

17 On 27 March 2017, the Tribunal affirmed the decision of the delegate (Tribunal decision or T).

Judicial review proceeding in the Primary Court

18 On 20 April 2017, the appellant sought judicial review of the Tribunal’s decision. The appellant relied on two unparticularised grounds of review: first, that the decision of the Tribunal was affected by an error of law; and secondly, that he had been denied procedural fairness.

19 The primary judge noted that the grounds of review had no particularity and described them as “somewhat meaningless as they stand”: PJ[55]. The primary judge noted that at the hearing, the primary judge had asked the appellant (who was not legally represented) to elaborate on the grounds of review and his application generally. The primary judge summarised the appellant’s response as follows:

[55]     … He said to me that he is not sure about what error of law there was, but that the decision was contrary to what he did say, though he does not know why.

[56]    I asked the applicant to expand on this, and he said that he had told the AAT that, after 2007, he could not stay in one place, but they said that he was in the area.  He said that the AAT said that he was contacted by phone, but he had told them that he was contacted by other means as well, and he told them that he was attacked at the bus stop, and this did not seem to be accepted.

[57]    He said that the AAT had repeatedly talked about there being no evidence, but he said that he was not ever asked to give evidence, and that if he was asked he would have gotten evidence, but he was not asked.

[58]    He said that, because the AAT missed these issues, the overall tale that was told became diminished and the seriousness of his situation was not fully understood.  He said that he just knows that something is wrong; he cannot pinpoint what it is because he does not know if it is an interpreter issue, but he just knows that it is wrong.

20 The primary judge concluded that the appellant’s claims “really have very little merit”: PJ[59]. The primary judge found that the Tribunal had correctly summarised the appellant’s claims as to what had occurred, but that the Tribunal did not accept the appellant’s claims: PJ[59]. In short, the primary judge noted that the Tribunal did not accept that the appellant’s account was truthful: PJ[61].

21 In the hearing before the primary judge, the appellant submitted that he was not asked by the Tribunal to give evidence and that he would have put on evidence had he been asked to do so: PJ[57]. The primary judge noted that, at each step of the process, the appellant had been asked for evidence and the appellant had plenty of time within which to provide evidence, especially given the long delays between each of the procedural steps in the process: PJ[62]-[63]. The primary judge concluded that the appellant had not established either of the grounds of review: PJ[64].

22 The primary judge then referred to the post-interview submission at PJ[65]-[66], noting that it had been omitted from the materials provided to the Tribunal:

[65]     The Minister, in his role as the model litigant, has pointed out to the Court that the post-interview submission was not given by the Secretary to the AAT when the AAT was looking at this matter. That submission is found at CB 106 to 109, and it covers a number of submissions and country information. It seems to me that all of the matters that were raised in that submission were covered, and covered extensively, by the AAT in its reasons.

[66]     Therefore, there is no materiality to the error of the AAT of failing to consider this particular submission.

23 On 21 January 2022, the primary judge dismissed the judicial review application: PJ[67].

INTERLOCUTORY APPLICATIONS

Extension of time

24 I have mentioned this application briefly above. The appellant applies under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to file a notice of appeal. I will dispense with that application immediately. The evidence in support of that application makes it plain that the fact that the notice of appeal was not filed on the Court file was not as a result of any dilatory conduct on the part of the appellant, but occurred as the result of administrative error within the registry. In these circumstances, the Minister sensibly does not oppose time being extended, if that be required. There is no utility in determining whether the documents provided by the appellant to the registry should be treated as having been filed even though they were not placed on the Court file. Instead, as I indicated at the hearing, I will deal with this pragmatically. To the extent that it is necessary, I will make an order extending time in which to file a notice of appeal.

Leave to rely on the Amended Notice of Appeal and adduce evidence on the appeal

25 The appellant accepts that leave is required to advance new grounds of appeal. The appellant seeks leave to rely on a notice of appeal in amended form which includes three grounds of appeal, which were not raised below, although one of the “new” grounds was addressed by the primary judge.

26 The exercise of this Court’s appellate jurisdiction involves an appeal by way of rehearing: Huynh v Minister for Immigration and Border Protection [2020] FCAFC 153; 283 FCR 451 at [57] (Reeves, Bromwich and Anderson JJ). On appeal, the court has a discretion to grant leave to an appellant to raise a new point on appeal if it is expedient in the interests of justice to do so: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 8 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ); O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J). In assessing the interests of justice, the Court principally has regard to whether the proposed new ground clearly has sufficient merit to warrant leave being granted: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [51] (Allsop CJ, Kerr and Mortimer JJ).

27 In determining whether to grant leave to raise a new ground, the Court will also have regard to whether there is an adequate explanation for not raising the point before the primary judge and whether there is any real prejudice to the respondent in permitting the new ground to be agitated, while at all times having regard to the administration of justice generally: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [110]-[112] (O’Bryan J, Katzmann J at [1] agreeing); DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [23]-[24] (Wigney, Wheelahan and Halley JJ).

28 By the Amended Notice of Appeal, the appellant contends that the primary judge erred in not finding jurisdictional error on the part of the Tribunal on the basis that:

(1) the Tribunal did not consider relevant considerations, being the post-interview submission: Ground 1;

(2) the Tribunal contravened s 425 of the Migration Act 1958 (Cth) by not giving the appellant an opportunity to know and to give evidence and to present arguments in relation to issues on the review, namely, that his credibility was in issue: Grounds 2(a) and 2(b);

(3) the Tribunal erred in rejecting central evidence of the appellant on the basis of credibility in circumstances where the Tribunal made its decision nearly a year after the hearing: Grounds 2(c) and 3(a); and

(4) the factual findings of the Tribunal that the appellant’s evidence was “vague” and “far-fetched” were legally unreasonable: Ground 3(b).

29 The Minister opposed the grant of leave for new Grounds 2 and 3, but did not oppose the grant of leave for Ground 1.

30 The Minister submits that leave to rely on Grounds 2 and 3 should be refused because the appellant had ample opportunity to obtain legal representation and to raise these grounds before the primary judge, yet failed to do so. The appellant filed his application in the Primary Court on 20 April 2017 and the application was heard almost five years later, on 21 January 2022. There was no evidence before the Court as to the difficulties or lack of difficulty that the appellant may have had in securing legal representation prior to the hearing at first instance, including in relation to his ability to pay for legal representation. Counsel appearing for the appellant conceded that this was the position but submitted that notwithstanding this, if there is sufficient merit in the grounds now sought to be advanced, the Court should grant leave. The appellant submits that to refuse leave would cause substantial prejudice to the appellant whereas there would be no prejudice to the Minister that could not be cured by costs.

31 While I am satisfied that it is appropriate to grant leave to raise Ground 1 (which was addressed in substance before the primary judge and was not opposed by the Minister), I am not persuaded that there should be leave to rely on proposed Grounds 2 and 3. Weighing in favour of the grant of leave is the fact that these grounds do not cause any prejudice to the Minister but against this must be weighed that the refusal of leave would cause substantial prejudice to the appellant. While it is clear that the appellant was not legally represented in the Primary Court and did not appear to fully understand the nature of judicial review before the primary judge, the fact that there is no explanation by the appellant for why during the long period available to him he did not seek to secure legal representation weighs against the grant of leave. In those circumstances, the decisive consideration is whether Grounds 2 and 3 are of sufficient merit to support a grant of leave. The parties, in the interests of efficiency, proceeded on the basis that Grounds 2 and 3 should be fully argued and the issue of leave should be addressed at the time of giving judgment. For the reasons given in my consideration of proposed Grounds 2 and 3, I am not satisfied that either of these grounds have sufficient merit to warrant the grant of leave. These grounds have been fully argued, and had leave not been required, I would have determined that the grounds ought be dismissed for the reason that they lack merit. As it is, I will refuse leave to raise these grounds.

32 I will dispense with the requirement that the appellant file an amended notice of appeal which reflects the grant of leave in relation to proposed Ground 1.

33 The appellant also seeks leave to adduce additional evidence in the form of transcriptions of the audio recording of the hearing before the Tribunal (see paragraph [14] above). The Minister did not oppose the Court having regard to the new evidence to the extent that it was indicative of the merit of the proposed new grounds of appeal.

34 Section 27 of the Federal Court of Australia Act 1976 (Cth) permits the Court to receive further evidence on appeal. As the Full Court stated in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] (Beaumont, Lindgren and Tamberlin JJ), two conditions must ordinarily be satisfied for the court to receive further evidence on appeal:

(1) the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and

(2) the evidence must be such that very probably the result would have been different.

35 The appellant submits that the new evidence, comprising the transcript of the hearing before the Tribunal, is not contentious and is evidence of the material that was before the Tribunal. In arguing the substance of the proposed new grounds, both parties relied on the transcripts annexed to the affidavits of the appellant’s solicitor. I am satisfied that it is appropriate that the further evidence be admitted on the procedural application and on the appeal proper in relation to Ground 1 in respect of which leave has been granted.

36 For completeness, as I have said, I will admit the joint note provided by the parties on 20 March 2025 which clarified a transcription issue raised during the course of the hearing on the interlocutory application but not on the appeal proper (see paragraph [15] above).

CONSIDERATION

Ground 1: Post-interview submission which was not provided to the Tribunal

37 As mentioned, the Tribunal affirmed the delegate’s decision (T[31]), but in doing so, did not have a copy of the post-interview submission that had been before the delegate. Ground 1 reflects the issue raised before the primary judge in relation to the post-interview submission which the primary judge addressed at PJ[65]-[66], extracted above. I have addressed the issue of leave to raise this ground above.

38 Ground 1 alleges error on the part of the primary judge in concluding that the Tribunal’s error in failing to consider the post-interview submission, which it did not have, and which was relevant, was not a material error, and that therefore the Tribunal’s decision was not affected by jurisdictional error. The primary judge’s conclusion that the error was not material was informed by his Honour’s assessment of the Tribunal’s reasons which led his Honour to conclude that the topics raised in the post-interview submission were in fact covered by the Tribunal in its reasons in any event, even though the post-interview submission was not provided to the Tribunal: PJ[65]-[66].

39 It is not in dispute that the post-interview submission was not provided to the Tribunal even though it should have been as a document relevant to the review of the delegate’s decision in accordance with s 418(3) of the Act (which has since been repealed). As mentioned, it appears that the post-interview submission was not provided as the result of an administrative error. As noted by the primary judge, the Minister, consistently with the role of a model litigant, drew to the primary judge’s attention the fact that the post-interview submission had not been provided to the Tribunal: PJ[65].

40 By this ground, the appellant raises an issue which was raised before the primary judge, albeit by the Minister. The primary judge accepted the Minister’s submission on this point, namely that the issues addressed in the appellant’s post-interview submission were covered by the Tribunal in its reasons. In the result, the primary judge was satisfied that the Tribunal’s failure to have regard to the post-interview submission, although an error, was not material: PJ[65]-[66].

41 The relevant principles in relation to a third party breach of the obligation in s 418(3) of the Act were summarised as follows by Burley J in EIJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1429 at [33]-[34]:

[33]  There is consistent authority for the proposition that there are limited circumstances in which a third party breach, not known to the Tribunal, may result in jurisdictional error. In SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 at [59]–[66] the Full Court (Bennett and McKerracher JJ, Rares J agreeing at [90]) found that in the absence of a contention that a part of the process has been tainted by fraud or that the action of the Secretary was other than inadvertent, a breach of s 418(3) will not amount to a jurisdictional error. That decision was recently followed in Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50; 261 FCR 97 where the Full Court (Tracey, Mortimer and Moshinsky JJ) found that it was not plainly wrong, and should be followed (at [63], [64]).

[34]     In BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; 248 FCR 159 at [92]–[107], the Full Court (Griffiths, Kerr and Farrell JJ) considered a similar contention. After reviewing the authorities, including SZOIN, the Court concluded:

(a)    that a breach of s 418(3) will not of itself found jurisdictional error in the Tribunal, absent the taint to which the court in SZOIN referred (at [93]).

(b)     however, it is a failure to comply with s 425 of the Act if the failure to provide information causes the Tribunal, even innocently, to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment (at [106]).

42 The appellant submits that the post-interview submission contained concrete details of arrest and detention of Tamil returnees and that the Tribunal erred in not considering the detailed information about arrest, detention, monitoring, torture and abduction of returnees that was provided in the post-interview submission.

43 The Minister repeats his submission made before the primary judge that notwithstanding that the post-interview submission was not provided to the Tribunal, the Tribunal comprehensively covered in its reasons the topics raised in the post-interview submission by reference to more recent, and authoritative, country information. The Minister submits that the information contained in the post-interview submission came from less authoritative sources than that upon which the Tribunal relied in making its decision, being the Department of Foreign Affairs and Trade (DFAT) country information reports for Sri Lanka published in 2015 and 2017. The Tribunal noted that the then most recent DFAT country information report was published on 24 January 2017, and that this report did not differ materially from the December 2015 report. Further, that in line with its obligations under the then current ministerial direction (being Direction No. 56), the Tribunal had regard to the 2017 report: T[65]. By contrast, the country information on which the appellant relied in the post-interview submission derived from various non-governmental sources. Much of it predated the country information that was relied on by the Tribunal and which derived from both governmental and non-governmental sources and essentially covered the same topics.

44 Having reviewed the post-judgment submission, the Tribunal’s reasons and the transcript of the hearing before the Tribunal, I accept the Minister’s submission.

45 The Tribunal accepted that the Karuna group was active in the relevant area at the relevant time — that was one of the topics addressed in the post-interview submission. Whereas the post-interview submission was largely based on less authoritative, and less current, country information than that relied upon by the Tribunal, much of the country information cited in the post-interview submission was considered by the Tribunal, including the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated 21 December 2012: T[63]. However, as the primary judge noted at PJ[61], the Tribunal did not accept that the appellant’s account was truthful. Specifically, the appellant’s claim that he was of interest to the Karuna group because he was suspected of being involved with the LTTE was not accepted by the Tribunal. The Tribunal regarded this critical aspect of the appellant’s claim to be “purely speculative, based [on] his brother-in-law’s conjecture”: T[56], T[59].

46 In so far as the information in the post-interview submission was based on the appellant’s recount of his own personal experiences, that information did not materially supplement the evidence that the appellant had given before the Tribunal about his reasons for suspecting that the persons who had killed one of his friends and threatened to kill him were members of the Karuna group. The post-interview submission reiterated the appellant’s submission that he was probably targeted as he was perceived to have links to the LTTE including as a result of his former roommates being suspected of LTTE activity (which the Tribunal did not accept: T[55], T[59]). The information in the post-interview submission, taken at its highest, was another iteration of substantially the same assertions based on the appellant’s suspicion and conjecture.

47 On the basis of country information that it relied on (which was both more current and authoritative than that which was cited in the appellant’s post-interview submission, both generally and in relation to the Karuna group’s activities) the Tribunal accepted that the Karuna group was a paramilitary group that was active in the appellant’s home area at the relevant time (T[56]), but did not accept that the appellant was of interest to them (T[56]-[59]). Further, the Tribunal did not accept the appellant’s contention that he was of interest to the Karuna group based on his being suspected of being involved with the LTTE: T[59].

48 The appellant contends that I should infer, by reference to the comparative detail in the post-interview submission compared to the brevity of the oral submissions made to the Tribunal, that if the appellant or his representative had been aware that the Tribunal did not have all of the material which was put before the delegate, then the appellant may have adduced further evidence or made additional submissions to the Tribunal. This submission is necessarily understood to be limited to the topics addressed in the post-interview submission which are summarised above. I am satisfied that the Tribunal specifically addressed the issues raised in the appellant’s post-interview submission with reference to the most current relevant country information as at the time of its decision. To the extent of any inconsistency, the later information is to be preferred to the more dated information contained in the post-interview submission.

49 The Tribunal’s decision specifically cites extracts from the 2015 DFAT Report relating to country information that showed that although many Tamils reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government, DFAT assessed that monitoring and harassment of Tamils has decreased under the Sirisena government: T[65]. These matters were raised with the appellant during the hearing. The Tribunal carefully considered the appellant’s comments about the current situation in Sri Lanka, but gave weight to the country information and the assessment of DFAT, the UNHCR and the UK Upper Tribunal: T[69]. The appellant submits that the Tribunal was required at least to engage with the sources cited in the post-interview submission which were at least on their face, independent and significant sources of information. The post-interview submission includes, amongst other things, a report from 2012, which by the time of the Tribunal’s decision was outdated. That information included claims that Tamils with relatively peripheral links to the LTTE may face mistreatment by Sri Lankan authorities. The events described in that report pre-dated the democratic election of the Sirisena government in January 2015 and the changes that followed thereafter: see the DFAT country information report for Sri Lanka published on 24 January 2017 (2017 DFAT Report) at [2.3].

50 The appellant did not articulate any claim to fear harm arising from his status as a failed asylum seeker either in his statement of claims or in his oral evidence before the Tribunal: T[76]. However, on the basis of the appellant’s representative’s submission to the Tribunal, the Tribunal considered the issue. In doing so, the Tribunal was guided by specific information published by DFAT dated November 2012. This information was supported in the 2017 DFAT Report. The information included detail about the process by which a returnee would be assessed and interviewed upon arrival at the airport. It noted that the DFAT Post had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka [R.2.]. The Tribunal noted that the appellant had departed Sri Lanka legally using his own identity and that there were no outstanding charges against him: T[78]. It concluded that the appellant did not face “any real chance of being detained or questioned or otherwise targeted for harm – at the airport or in his home area – due to his race, male gender, age, residence in the East in his early years, experiences of arrest in 2006, any adverse real or imputed political opinion arising from connection with room-mates in 2006, and/or identification as a failed asylum seeker”: T[80].

51 In the post-interview submission, the appellant primarily relied on the reports of two non-profit organisations: Tamils Against Genocide and Freedom from Torture. Both these organisations were regarded as being less authoritative and their reports were more dated than the country information on which the Tribunal relied. The appellant relied on these reports to claim that in 2012 there were a few instances of returnees being arrested at the airport upon arrival or after they left the airport. In the DFAT country information considered by the Tribunal, a lengthy extract of which is included at T[77], the Tribunal noted that:

[77]    With respect to the failed asylum seeker claim, the following country information is relevant. Specific advice received from the DFAT, put to the applicant, indicates that Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen, that this is a standardised process:

R1. Returnees are subject to standardised identity and security checks regardless of ethnicity and the circumstances of their departure from Sri Lanka. Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Government of Sri Lanka has standardised re-entry procedures in place at the airport to undertake identity and security checks for all returnees. These processes are applicable to all Sri Lankan returnees regardless of ethnicity and are standard for returnees from all countries regardless of the circumstances around their departure from Sri Lanka (i.e. regardless if the returnee is voluntary or involuntary).

In general, all arrivals at the airport are screened against an immigration database. Sri Lankan law enforcement agencies, including intelligence agencies, may place alerts against names in the immigration watchlist. A person with an alert against his or her name would be subject to further questioning at the airport.

Where a person is not on the immigration watchlist but the person is otherwise identified to be of security interest, such as if a person has been removed/deported (returnee) or is suspected of being involved in criminal behaviour, including people smuggling, s/he is likely to be interviewed by Police's Criminal Investigation Department (CID) airport office or the State Intelligence Service (SIS), or both. This checking would occur regardless of ethnicity.

We understand that where a person is known to be a non-voluntary returnee (we note again regardless of ethnicity), Sri Lankan immigration authorities have a standing agreement to refer the person to both SIS and CID at the airport for questioning.

The process for returnees (non-voluntary and/or voluntary returnees) who have departed Sri Lanka illegally (not through an official port of entry/exit or not with a valid travel document) is that they will be processed by Sri Lanka's Department of Emigration and Immigration (DIE), SIS and Airport CID. Procedures include Airport CID obtaining police and security clearances, including from the person's local police office, to confirm there are no outstanding warrants against the person before they are allowed to exit the airport.

In situations where the person is required to be interviewed by Sri Lankan security agencies, the SIS interview would normally precede the police interview. In the SIS interview, the returnee would be checked against intelligence databases. In the police interview, checks against police databases would be made, fingerprints would usually be taken and the person photographed. It would also be common for the person to be held until checks are made with the returnee's local police station.

Increasing numbers of Sri Lankans have been returned from Australia either voluntarily or non-voluntarily in 2012. The arrival of voluntary returns is facilitated by the International Organization of Migration. Based on post's current experience, Sri Lankan agencies endeavour to complete identity and security checks as soon as possible. Police’s Deputy Inspector General of CID has advised post that CID endeavours to complete all processing at the airport as quickly as possible with no unnecessary delays. Post has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.

R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they have facilitated.

We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report “Sri Lankan Tamils tortured on return from the UK” [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

“We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture.”

52 It was not necessary for the Tribunal to consider the issue of relocation as it was satisfied that the appellant did not face any real risk of harm if he returned to Sri Lanka: T[61]. The Tribunal had also found that the appellant continued living and working in the Negombo area and had been able to carry out his affairs normally, including selling land in Batticaloa to finance his travel to Australia: T[58].

53 The appellant would have been aware that consistently with the then current Ministerial Direction, the Tribunal would rely on most current and authoritative country information available to it to make its decision. In circumstances where the relevant historical and current country information included in the post-interview submission was overtaken by the information on which the Tribunal did rely the appellant suffered no detriment to his case by reason of the post interview submission not having been before the Tribunal. I am satisfied that even if the Tribunal had the information in the post-interview submission before it, the Tribunal would still have preferred the information provided in the 2017 DFAT report that stated that there was no evidence that returnees would be mistreated.

54 Although the Tribunal did not receive the appellant’s post interview submission, it nonetheless actively considered all of the relevant topics raised in that submission. The Tribunal considered and addressed the Karuna group claims and related country information (T[55]-[57]); the LTTE claims (T[62]-[71]); and the failed asylum seeker claims (T[76]-[88]). The Tribunal’s consideration of those topics was guided by reference to country information that it was bound to prefer over the dated information cited in the post-interview submission. The Tribunal understood the basis upon which the appellant claimed he was at risk because he was suspected of having LTTE connections but did not accept his evidence in that regard. Based on the Tribunal’s findings that the appellant did not face any risk of harm, the Tribunal did not need to consider the appellant’s claims in relation to the risks he would face even if relocated. I am satisfied that the appellant was not disadvantaged or deprived of a fair opportunity to present his case contrary to s 425 of the Act. The appellant was not otherwise denied procedural fairness. Ground 1 is dismissed.

Proposed Grounds 2 and 3

55 As I have mentioned, the appellant requires leave to rely on proposed Grounds 2 and 3, which leave is opposed. I am not satisfied that these proposed grounds have sufficient merit to support a grant of leave. My reasons for reaching that conclusion are as follows.

Proposed Grounds 2 and 3 overview

56 The proposed grounds are inter-related and reflect different expressions of a fundamental complaint about the Tribunal’s conclusion that the appellant’s evidence relating to his core claims was inconsistent, vague, far-fetched, and had significant omissions. In the appellant’s submission, the Tribunal breached s 425 of the Act by not giving him an opportunity to know in advance the Tribunal’s concerns and to address those concerns by giving evidence or presenting arguments in relation to the specific concerns that the Tribunal had with his credibility arising from the nature of the evidence he had given, including the level of detail he had provided. Relatedly, the appellant complains that in reviewing the matter and making its decision under s 415 of the Act, and exercising the powers of the Minister under s 65 of the Act in forming or not forming the requisite state of satisfaction as to the criteria under ss 36(2)(a) and 36(2)(aa) of the Act, the Tribunal erred in rejecting the claims made by the appellant on the basis that the claims were not credible in circumstances where the Tribunal made the decision nearly a year after the hearing and otherwise acted in a way that was legally unreasonable.

Proposed Grounds 2(a) and 2(b): Section 425 and credibility

57 It is convenient to consider proposed Grounds 2(a) and 2(b) together. These grounds concern whether the Tribunal erred in not putting the appellant on notice that his credibility was in issue because he did not mention aspects of his claims at the hearing and/or because his evidence about particular incidents was vague or far-fetched.

58 At the start of the hearing, the Tribunal explained to the appellant the role of a Tribunal, including that the Tribunal is independent of the Department and must come to its own decision based on the information provided and on the submissions made at the hearing. The Tribunal described its role as follows:

I would need to consider if there are substantial grounds for believing that as a necessary and foreseeable consequence of you being removed from Australia to Sri Lanka that there is a real risk you will suffer significant harm. I may ask you to comment about information that is averse to your case, this wouldn’t be because I have made up my mind about your case but to give you the opportunity to comment on the information.

59 The Tribunal later echoed these remarks and explained that it would “take into account your views and look at the information that I have and consider it all together”.

60 I am satisfied that the Tribunal’s approach was appropriate to provide the appellant with notice that the Tribunal would have to be satisfied that there were substantial grounds for believing the appellant’s claims. In this way, I am satisfied that the appellant was on notice that his credibility was a matter that the Tribunal was assessing as part of its decision-making process.

61 It is well established that s 425 of the Act does not require the Tribunal to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go: see Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC162; 163 FCR 285 at [88]-[89] (Emmett, Weinberg and Lander JJ); CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [87]-[93] (McKerracher, Griffiths and Rangiah JJ).

62 The hearing before the Tribunal lasted approximately two hours and was conducted with the assistance of an interpreter. As mentioned, parts of the audio recording of the hearing could not be transcribed completely and are noted to be “inaudible” in the transcript that has been tendered. I have taken into consideration that even the more fulsome transcript does not capture the totality of the evidence before the Tribunal.

63 Based on a review of the transcript, it is apparent that the Tribunal spent a substantial amount of amount of time seeking to elicit the appellant’s recollection of events. The Tribunal asked the appellant the following series of questions (with formatting changes):

MEMBER: They called you on the phone. Did they identify themselves?

APPLICANT: They didn't properly tell me who they were, but they told me we want to kill you we want to hit you

MEMBER: What happened then?

APPLICANT: So when they asked me to come I went there and they asked me about [one of the appellant’s roommates] and after that they demanded money and I told them I will give you money - (inaudible)-

MEMBER: Where did they ask you to go to?

APPLICANT: Bus stop

MEMBER: Did you go with somebody?

APPLICANT: I went there by myself

MEMBER: Was that risky?

APPLICANT: At that time, I wasn’t - (inaudible) - somebody dangerous

MEMBER: But you didn’t know who you were going to meet? I wasn't exactly sure that these were the people - (inaudible)

MEMBER: How many people were there?

APPLICANT: I think 2 or 3 people. I don't know I can't remember

MEMBER: You said they asked for money. Is that what you said?

APPLICANT: Yes, I told them that I will give you money

MEMBER: How much did you give them?

APPLICANT: (inaudible)

MEMBER: You told them you would give them money in the future?

APPLICANT: Yes

MEMBER: Do you think they believed you?

APPLICANT: I don’t know probably they would have thought that even if I am (inaudible)- probably they could capture me at a later stage

MEMBER: When did this event occur?

APPLICANT: 2007 but I don't exactly remember which month. Probably in mid-2007 but I don't exactly know.

64 After several questions in relation to the appellant’s roommate, the Tribunal’s questions continued as follows:

MEMBER: Did anything else happen? At that time at the bus stop?

APPLICANT: When I first told them I don't know about it that was the time they hit me and then they spoke about money

MEMBER: Were you injured?

APPLICANT: They hit me on the face (inaudible)

MEMBER: And they asked for money and you didn't have any money? I assume you weren't carrying any money? That was in 2007 what did you do then?

APPLICANT: After that particular incident I didn't stay in (inaudible)

MEMBER: It seems like they were looking for you because they thought you knew about [N]? Is that what you think?

APPLICANT: That is what I think - (inaudible) - involved in something

MEMBER: What do you think they thought the three of you were involved in?

APPLICANT: I don't know

MEMBER: The reason I am interest[ed] is because though your statement it appears they were not actually interested in you. Is that how you see it - they had plenty of opportunity to take you or do harm to you and they didn't?

APPLICANT: (inaudible)- but after [his roommate] had left they started asking me

MEMBER: What were they asking you?

APPLICANT: They started looking for me and enquired me and asked me to come to the bus stop and after I had gone to Indonesia they went and asked my uncle about myself and then they asked myself from my younger brother and - (inaudible) - my brother-in-law which is my older sister’s husband

MEMBER: It would seem to me that these people had opportunity to find you quite easily and they knew where you were, and they had the bus stop - they knew where you worked. I think it would have been quite easy to find you if they were really interested in your own situation. What are your comments to that?

APPLICANT: That is why I mentioned these people - after the bus stop incident I wouldn't pay - (inaudible) - and I would move from one place to another

65 As set out above, the appellant claimed that unidentified people had called him and when the appellant was asked by the Tribunal about the identity of the callers, the appellant’s response was that he had not inquired as to who the callers were. This claim does not appear to have been made before the delegate. As a new claim advanced at the hearing, the appellant was not entitled to assume it would be accepted and the Tribunal was not required to put him on notice of this: SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 (Bennett J). The Tribunal accepted the appellant’s evidence of the telephone calls, but found that it was far-fetched that the appellant would not make enquiries to the callers to establish who they were and the nature of their interest if the appellant had any concern that the callers intended harm to him: T[47].

66 As is apparent from the Tribunal’s questioning, particularly about aspects of the appellant’s evidence which the Tribunal was having difficulty believing, the appellant was on notice during the hearing that his credibility was in issue from nature of the questions asked by the Tribunal and the opportunities provided by the Tribunal for the appellant to expand on his evidence on those issues and explain why his account should be accepted: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; 189 FCR 494 at [60] (Besanko J).

67 In AZAAD at [103], Reeves J observed:

[I]t may be apparent from the nature of the Tribunal’s questioning that everything the applicant says in support of his or her application is in issue. In this regard, the Tribunal does not have to go as far as saying to the applicant that he or she is lying, or may not be accepted as truthful, or is exaggerating, nor does the Tribunal have to give a running commentary on its reactions to, or thoughts about, the evidence the applicant is giving, so long as it makes it clear from its questioning that the whole of the applicant’s claims are in issue. …

68 That the Tribunal is not required to provide the appellant with a running commentary on what it thinks about the evidence that is given was made plain in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at 166 [47]-[48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

69 The appellant accepted that the Tribunal does not have to expose its thought processes but submitted that the Tribunal is obliged to expose the issues on the review which may include general credibility issues or credibility on particular points. The appellant contends that he was not questioned about the consistency of his evidence on the specific topics about which he complains, and in any event, it was not sufficient for the Tribunal to merely indicate that the appellant’s general credibility was an issue when the Tribunal went on to make findings as to his credibility on specific topics.

70 Following a brief adjournment, the Tribunal summarised the country information provided by the appellant and provided the appellant with an opportunity to respond:

MEMBER: We had talked through the morning about your circumstances in Sri Lanka and I thought it would be a good time now to talk about some of our country information and get your response to that. There is a lot of material we have here, and I will try and summarise. …

Perhaps that might be a spot to stop to give you the opportunity to comment so I guess what I will be looking at in your circumstances is how your circumstances fit with this kind of information and this kind of risk profile?

71 Prior to concluding the hearing, the Tribunal provided a final opportunity for the appellant to make any final comments (extract of transcription as written):

MEMBER: Alright anything further that you would like to add?

APPLICANT: What else can I say there won’t be anybody to give us protection even the Tamil Party - (inaudible) - even if something happened we cannot do anything about it.

MEMBER: Thank you. I would like to ask your adviser to make any submissions to me about your case and then we can talk further if we need. Adviser, you have heard the discussion and –

ADVISER: It is apparent that there are difficulties in this case there are because although - (inaudible) - evidence about who is after him and why they were after him and that is the difficulty and it is not due to a lack of credibility on his part I just think the reality is that he is not sure - (inaudible) - if indeed he was by association with two friends who themselves have had involvement with the LTTE - (inaudible) - certainly don't want to go beyond the bounds of his arguments for why he was targeted but it is open to you accept that he - (inaudible)

MEMBER: Thank you very much for that. It is very helpful. I think I have all the information I need [informant] of me to make a decision about your case. What happens from here I consider [eventing] you have told me today and I take into account your adviser’s submission, the broader country information and then I make a decision. Can I just ask you if there is anything further you want to add?

APPLICANT: I have to reveal everything truthfully and whatever that has happened to me and whatever I remember.…

72 It is clear that, in so far as the audio can be transcribed, the Tribunal consistently asked open-ended questions about the incidents involving the appellant as well as more targeted questions directed to the appellant’s credibility. One such example is as follows:

I understand that Karuna group was there, but there was still opportunity to arrest people who were considered to be LTTE but this didn't happen to you and I am still not clear about why that would be the case?

73 I do not accept the appellant’s contention that he was not given a chance at the hearing to mention aspects of his claims which the Tribunal later characterised as “omissions”: see T[46]. The appellant was adequately put on notice that the Tribunal was testing the veracity of his claims. In its ultimate analysis, the Tribunal found that that central aspects of the appellant’s evidence were “vague and limited, and in some respects far-fetched, so as to raise serious doubts about the credibility of his claims” and also “lacked the specificity expected of someone who was recounting their own experience”: T[32], T[50]. In short, the Tribunal did not believe the appellant’s key claims for protection: T[57], T[61].

74 The Tribunal concluded that in the absence of corroborative evidence, it was not prepared to infer that the appellant’s evidence was credible because there was a consistency to the appellant’s claims. The Tribunal’s basis for reaching this conclusion was that evidence that was submitted to have been consistent was in any event “of such a vague and far-fetched nature that it cannot give the applicant’s consistency greater weight in consideration of the credibility of the of the applicant’s overall claims”: T[57]. The complaint which informs these proposed grounds of appeal does not establish error on the part of the Tribunal.

75 Accordingly, I am not satisfied it is in the interests of justice to grant leave in respect of proposed Grounds 2(a) and 2(b).

Proposed Grounds 2(c) and 3(a): Delay in Tribunal decision

76 I now turn to address proposed Grounds 2(c) and 3(a) together. By these proposed grounds, the appellant contends that it was not open to the Tribunal to make adverse credibility findings in circumstances where its decision was made almost one year after the hearing. The Tribunal hearing was held on 31 March 2016, and its decision made on 27 March 2017.

77 A delay that impairs the capacity of the Tribunal to form an accurate assessment of an applicant’s credibility can amount to jurisdictional error: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470; see also Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 (Gray J); BDW15 v Minister for Immigration and Anor [2017] FCCA 2742 (Wilson J). As noted by Abraham J in DGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 982 at [55]:

The issue of whether the delay in this case created a real and substantial risk that the Tribunal’s capacity to assess the appellants’ evidence was impaired necessarily involves an examination and consideration of the individual circumstances of this case: cf BIX15 and CQV16. The issue is whether, in all the circumstances, the procedure adopted by the Tribunal was fair.

78 This matter relevantly differs from NAIS in two respects. First, the interval between the hearing and the Tribunal’s decision was 12 months, which is substantially shorter than the four and a half years delay in NAIS. Secondly, unlike in NAIS, the Tribunal’s adverse findings about the credibility of the appellant’s account were not based on the appellant’s demeanour at the Tribunal’s hearing. The Tribunal provided detailed bases for its finding that the appellant’s claims lacked credibility, which were unrelated to the appellant’s demeanour when giving evidence. The Tribunal’s concerns were based on the lack of tangible evidence to support the appellant’s claims and that the appellant was not sure who was after him or why: T[27]. The appellant’s representative submitted that the Tribunal should nevertheless accept the appellant’s claims asserting that the claims were credible and had been consistently put: T[27]. The appellant further submitted that it was open to the Tribunal to accept that the appellant had a subjective fear about his future, although he was unable to articulate the basis for this: T[28].

79 The Tribunal’s credibility findings were based on the lack of detail and the inconsistencies in the appellant’s evidence as to the basis of his fear of being at risk or harm, which were documented in both the delegate’s decision record and the evidence presented to the Tribunal. The Tribunal regarded the appellant’s evidence as vague, speculative and in instances, far-fetched: T[32], T[46], T[47], T[48], T[49], T[50], T[53], T[57], T[60].

80 The Tribunal also concluded that the appellant’s evidence that he moved around to avoid detection lacked credibility. In this instance, the Tribunal reasoned that the appellant’s concern was not borne out by reference to his own evidence which included that he continued to work at the same jewellery shop during the relevant period and also stayed with his relatives: T[50]-[51]. The Tribunal reasoned that anyone who wanted to find the appellant would have been able to do so notwithstanding his claim that he had moved around to avoid danger. The Tribunal concluded that the appellant’s vague and far-fetched evidence gave rise to serious doubt about the credibility of his protection claims: T[57].

81 The Tribunal’s decision was not founded upon its impression of the appellant’s demeanour or presentation at the hearing, and accordingly the delay between the hearing and the delivery of the Tribunal’s decision did not impair the Tribunal’s ability to form an accurate assessment of the matters that caused it to form an adverse view of the appellant’s credibility. I am satisfied that if leave was granted to rely on these proposed grounds the appellant would not succeed in establishing jurisdictional error as a result of a delay in the Tribunal delivering its decision notwithstanding that a central feature of the Tribunal’s decision was to find that the appellant’s claims were not credible. In these circumstances, coupled with the other factors I have already addressed, it is not in the interests of justice to grant leave to the appellant to raise these proposed grounds.

Proposed Ground 3(b): Unreasonable factual findings

82 By proposed Ground 3(b), the appellant alleges that the Tribunal made various factual findings that informed the Tribunal’s conclusion as to that the appellant’s credibility, which were legally unreasonable.

83 The appellant submits that there was no indication by the Tribunal of the level of specificity it required for the appellant to provide in answer to its questions, and that therefore the Tribunal had no logically probative basis to reject the credibility of the appellant’s evidence in support of his claims because of the omissions it identified in his evidence. The appellant submits his evidence was as detailed as it could be in the context of his fear as a result of the threats he claims to have been made against him and those around him, namely two of his friends and his brother-in-law.

84 The Minister submits that leave in respect of proposed Ground 3(b) should be refused on the basis that by this ground, the appellant seeks impermissible merits review. The Minister contends that the Tribunal’s findings were logical and reasonably open to it.

85 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Heydon J observed at [86]:

Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is “perfectly plausible” but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical.

86 In like vein, Crennan and Bell JJ said that (SZMDS at [131]):

[T]he 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.

87 The Tribunal’s findings challenged by this proposed ground of appeal concern the credibility of the appellant and the characterisation of his evidence in areas central to his claims as being “vague”, “inconsistent” and “far-fetched” and omitting relevant information: T[32], T[46], T[48], T[49], T[50], T[53], T[57]. The Tribunal’s reasons demonstrate that the Tribunal carefully and in a reasoned way assessed the whole of the appellant’s evidence and in doing so found that some parts of the appellant’s evidence were not credible for reasons which the Tribunal identified.

88 An illustration of the Tribunal’s approach is the way in which the Tribunal assessed the appellant’s evidence in relation to his arrest and detention in 2006. The Tribunal accepted the specific and consistent evidence given by the appellant that he was arrested in 2006 in Negombo and held for five days. The Tribunal did not infer from the fact of his arrest that the appellant was of interest to the authorities as  suspected of having LTTE connection or involvement. The Tribunal found that the reason for the appellant’s arrest was because his residence registration had lapsed: T[35], T[37]. This part of the appellant’s evidence corresponded with the country information that was before the Tribunal in relation to the relevant residence registration regulations: T[36]. The Tribunal inferred from the fact that the appellant had been arrested with 13 others from his lodgings who similarly did not have current residential registrations that the reason for his detention was that his registration had lapsed. In reaching this conclusion, the Tribunal rejected the appellant’s assertion that his arrest and detention was because he was of interest to the authorities and that his lapsed registration was an excuse for the authorities to arrest him: T[37].

89 The approach taken by the Tribunal does not meet the high bar required for legal unreasonableness. To the contrary, the Tribunal’s approach was to review and logically assess the account given by the appellant in the context of all of the available material. In doing so, the Tribunal rejected what was in substance the appellant’s speculation based on attempts to connect disparate events as giving rise to an inference that the appellant was relevantly suspected by the authorities and therefore at risk if returned. Following its detailed consideration of the country information and the appellant’s circumstances, the Tribunal reached an adverse conclusion in respect of the necessary premise for the appellant’s claims. The Tribunal regarded the appellant’s claim to be of ongoing interest to the Karuna group as speculative and not credible. That was a finding that was open to the Tribunal.

90 I accept the Minister’s submission that this proposed ground is directed in substance to impermissible merits review by in effect preferring the factual finding for which the appellant contends over that reached by the Tribunal in circumstances where the Tribunal’s findings were logically based and reasonably open. The Tribunal was entitled to reject the credibility of the appellant because of the lack of specificity and explanation of his experiences which he relied on as the basis for asserting a real chance of serious harm or real risk of significant harm on his return to Sri Lanka now or in the foreseeable future. Proposed Ground 3(b) is lacking in merit.

91 Accordingly, leave to rely on proposed Ground 3(b) will be refused.

CONCLUSION

92 For the reasons above, the application will be dismissed. The appellant is to pay the first respondent’s costs of the appeal, such costs to be assessed if not agreed.

Associate:

Dated:    5 September 2025