2443806 (Refugee) - [2025] ARTA 1890

2443806 (Refugee) [2025] ARTA 1890 (11 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2443806
Tribunal:General Member M Bailey
Date:11 August 2025

Place:Brisbane
Decision:The Tribunal affirms the decisions under review

Statement made on 11 August 2025 at 2:25pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity – Tamil – particular social groups – Tamil failed asylum seekers, Tamils who departed Sri Lanka unlawfully, and Tamil Sri Lankan women and girls – due to work locations was subject to questioning/searches by authorities at checkpoints – imputed political opinion due to perceived links to Liberation Tigers of Tamil Eelam (LTTE) – suspected of smuggling weapons for the LTTE – detained, beaten and tortured – family harassed and beaten – wife raped – claims not credible – females face gender-based harm – reports of sexual harassment by military – returning as a family unit, not as single women – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 351, 369, 499
Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWG18 v Minister for Home Affairs [2018] FCCA 2150; [2020] FCA 744
AWG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1062
AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195
AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39
Chan Yee Kin v MIEA [1989] HCA 62
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (delegate) on 24 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (applicant) lodged an application for a Safe Haven Enterprise (subclass 790) visa on 15 December 2016. This application included his wife, [Wife A], the second named applicant (second applicant) and his younger daughter, [Child A]. The delegate refused to grant the visas on the basis that the applicant did not satisfy the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The other applicants were found to not meet the criteria for grant of a protection visa under s 36(2)(b) or s 36(2)(c) as members of the same family unit.
The delegate’s refusal decision was referred to the Immigration Assessment Authority (IAA) for review. On 8 February 2018 the IAA affirmed the delegate’s decision. The applicants sought judicial review. The Federal Circuit Court found there to be no jurisdictional error and dismissed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2443806 (Refugee)

Details

AGLC: 2443806 (Refugee) [2025] ARTA 1890
Case: [2025] ARTA 1890
Decision Date: 11 August 2025

CaseChat Overview and Summary

The matter before the court involved the applicants, a Tamil family from Sri Lanka, who sought a review of the decision to cancel their protection visas. The applicants, represented by the Refugee and Immigration Legal Service (RAILS), argued that they faced harm due to their Tamil ethnicity, imputed political opinion, and membership in particular social groups. The applicants alleged that they were subject to regular searches, detention, beating, and torture by the Sri Lankan authorities due to their perceived links to the Liberation Tigers of Tamil Eelam (LTTE). The court was required to determine whether the applicants satisfied the criteria for a protection visa under the Migration Act 1958 (Cth).

The legal issues before the court were whether the applicants were eligible for a protection visa under section 36(2)(a) of the Act, which requires a person to be outside their country of nationality due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The court had to assess the credibility of the applicants' claims and the evidence presented in support of their protection visa application. The court also had to consider whether the applicants' claims fell within the definition of a refugee under the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees.

The court found that the applicants did not satisfy the criteria for a protection visa. The court noted that the applicants' claims were inconsistent and lacked credibility. The court found that the applicants' claims of being subject to regular searches and beating by the Sri Lankan authorities were not supported by credible evidence. The court also found that the applicants' claims of imputed political opinion and membership of particular social groups were not substantiated. The court further found that the applicants' claims of being subject to torture and gender-based harm were not supported by credible evidence. The court held that the applicants were not eligible for a protection visa under section 36(2)(a) of the Act and could not be granted the visa.

The court affirmed the decision of the delegate to cancel the applicants' protection visas. The court found that the applicants did not satisfy the criterion set out in section 36(2)(a) or (aa) for a protection visa and could not satisfy the criterion set out in section 36(2)(b) or (c). The court dismissed the applicants' appeal against the decision to cancel their protection visas.

Orders

Orders of the court

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Background

Background to the litigation

The applicants were represented in relation to the review by a lawyer from the Refugee and Immigration Legal Service (RAILS). The first and second applicants appeared before the Tribunal at the Brisbane Registry on 16 June 2025 to give evidence and present arguments. Their representative attended the hearing. The family’s social worker attended as a support person. The Tribunal received oral evidence from [Wife A]. The Tribunal hearing was conducted with the assistance of a female interpreter in the Tamil (Sri Lankan) and English languages.BACKGROUND The applicant is [an age]-year-old male of Tamil ethnicity from Batticaloa, Eastern Province, Sri Lanka. The second applicant, currently [age] years old, is the applicant’s daughter. She was born in Batticaloa and is of Tamil ethnicity. The applicants arrived in Australia by boat as unauthorised maritime arrivals [in] April 2013. The second applicant was [age] years old at the time of her arrival. While in immigration detention on Christmas Island, the applicant attended an ‘Enhanced Screening’ interview [in] April 2013 and an ‘Irregular Maritime Arrival & Induction’ interview (Arrival interview), conducted in two parts in June and July 2013 with officers of the (then) Department of Immigration and Citizenship (Department). [6][6] Currently the Department of Home Affairs The applicants provided Sri Lankan identity documents to the Department as part of the protection visa application. The Department and IAA accepted them to be citizens of Sri Lanka. Based on the available evidence, I am satisfied the applicants are citizens of Sri Lanka and that Sri Lanka is their receiving country for the purpose of assessing their protection claims. The applicants have consistently claimed to be of Tamil ethnicity and Hindu religion, and to have resided in Batticaloa, Eastern Province, prior to their departure for Australia. These claims were accepted by the Department and IAA. Based on the available evidence, I have no concerns with these claims.CLAIMS AND EVIDENCEProtection visa application The applicants were represented in relation to the protection visa application by RAILS. The applicant provided a Statutory Declaration dated 18 April 2017 and attended an interview with the Department on 23 August 2017. I have listened to an audio recording of the interview. In summary, he claimed that he would face harm from the Sri Lankan authorities for reasons of his Tamil ethnicity, imputed political opinion due to perceived links to the Liberation Tigers of Tamil Eelam (LTTE) and membership of particular social groups comprising Tamil failed asylum seekers and Tamils who departed Sri Lanka unlawfully. The applicant’s claims as stated in his Statutory Declaration are summarised below:i.His father passed away when he was a teenager. His mother [and siblings] reside in Sri Lanka. Another brother resides in [Country 1]; [another] brother passed away in 1989. ii.He never belonged to or worked for the LTTE and never transported supplies or weapons for the LTTE. iii.Between 2001 and 2005 he worked as [an Occupation 1, performing various job tasks] from four areas in Batticaloa District (Villages 1–4) which at that time were controlled by the LTTE. While [in the process of his work] to his hometown in Batticaloa, he was subject to regular searches at Sri Lankan Army (SLA) checkpoints. iv.Between approximately July 2005 and January 2008 he resided in [Country 1] where he worked as [an Occupation 2]. In May the applicant married his wife; they lived in his mother’s house in Batticaloa. Following his return to Sri Lanka, he resumed working as [an Occupation 1 performing various job tasks] between [Villages 1–4] and his hometown in Batticaloa District. The SLA became more suspicious of his activities. They came to his house to question him about whether he was smuggling weapons for the LTTE. v.In 2009, [the] applicant was stopped at a SLA checkpoint at [Village 5] and ordered to unload his items. When he protested, he was beaten and taken to a ‘Special Task Force’ camp in [Town 1]. He was forced to undress and was subjected to torture, including of a sexual nature. He was released the following day. vi.[In] January 2013 a group of men in a white van came to his house while he was at work. They threatened his mother and wife, demanding to know the applicant’s whereabouts. Three days later], a group of men in a white van again came to his house. The applicant was blindfolded and forced into the van. He was taken to a house where two other men were detained. The applicant was asked if he knew these men and vice versa. He was beaten and hung upside down while they hit his ears which resulted in a rupture to his left ear. The following day he was questioned about his travel between LTTE-controlled areas and accused of smuggling weapons for the LTTE. He was released the following night. vii.He returned to work about 15 days after this incident. A few days later, a white van came to his house again while he was at work and questioned his wife regarding the applicant’s whereabouts. That night, after returning from work, the applicant, his wife and the second applicant left his mother’s house. The went to his father-in-law’s home in [Town 2], Ampara District where they remained in hiding for around two months before departing Sri Lanka [in] April 2013.viii.About two months after they arrived in Australia the applicant’s mother told him she had escaped from her home as the authorities were frequently coming to her house and questioning her regarding the applicant’s whereabouts. After telling them that the applicant and his family may be in [Town 2], the authorities went to his in-law’s home and questioned them. They tied his father-in-law to a tree and interrogated him about the applicants. They beat his father-in-law because he refused to disclose the applicants’ whereabouts.

Evidence

Evidence Before The Court

The applicants provided Sri Lankan identity documents to the Department as part of the protection visa application. The Department and IAA accepted them to be citizens of Sri Lanka. Based on the available evidence, I am satisfied the applicants are citizens of Sri Lanka and that Sri Lanka is their receiving country for the purpose of assessing their protection claims. The applicants have consistently claimed to be of Tamil ethnicity and Hindu religion, and to have resided in Batticaloa, Eastern Province, prior to their departure for Australia. These claims were accepted by the Department and IAA. Based on the available evidence, I have no concerns with these claims.CLAIMS AND EVIDENCEProtection visa application The applicants were represented in relation to the protection visa application by RAILS. The applicant provided a Statutory Declaration dated 18 April 2017 and attended an interview with the Department on 23 August 2017. I have listened to an audio recording of the interview. In summary, he claimed that he would face harm from the Sri Lankan authorities for reasons of his Tamil ethnicity, imputed political opinion due to perceived links to the Liberation Tigers of Tamil Eelam (LTTE) and membership of particular social groups comprising Tamil failed asylum seekers and Tamils who departed Sri Lanka unlawfully. The applicant’s claims as stated in his Statutory Declaration are summarised below:i.His father passed away when he was a teenager. His mother [and siblings] reside in Sri Lanka. Another brother resides in [Country 1]; [another] brother passed away in 1989. ii.He never belonged to or worked for the LTTE and never transported supplies or weapons for the LTTE. iii.Between 2001 and 2005 he worked as [an Occupation 1, performing various job tasks] from four areas in Batticaloa District (Villages 1–4) which at that time were controlled by the LTTE. While [in the process of his work] to his hometown in Batticaloa, he was subject to regular searches at Sri Lankan Army (SLA) checkpoints. iv.Between approximately July 2005 and January 2008 he resided in [Country 1] where he worked as [an Occupation 2]. In May the applicant married his wife; they lived in his mother’s house in Batticaloa. Following his return to Sri Lanka, he resumed working as [an Occupation 1 performing various job tasks] between [Villages 1–4] and his hometown in Batticaloa District. The SLA became more suspicious of his activities. They came to his house to question him about whether he was smuggling weapons for the LTTE. v.In 2009, [the] applicant was stopped at a SLA checkpoint at [Village 5] and ordered to unload his items. When he protested, he was beaten and taken to a ‘Special Task Force’ camp in [Town 1]. He was forced to undress and was subjected to torture, including of a sexual nature. He was released the following day. vi.[In] January 2013 a group of men in a white van came to his house while he was at work. They threatened his mother and wife, demanding to know the applicant’s whereabouts. Three days later], a group of men in a white van again came to his house. The applicant was blindfolded and forced into the van. He was taken to a house where two other men were detained. The applicant was asked if he knew these men and vice versa. He was beaten and hung upside down while they hit his ears which resulted in a rupture to his left ear. The following day he was questioned about his travel between LTTE-controlled areas and accused of smuggling weapons for the LTTE. He was released the following night. vii.He returned to work about 15 days after this incident. A few days later, a white van came to his house again while he was at work and questioned his wife regarding the applicant’s whereabouts. That night, after returning from work, the applicant, his wife and the second applicant left his mother’s house. The went to his father-in-law’s home in [Town 2], Ampara District where they remained in hiding for around two months before departing Sri Lanka [in] April 2013.viii.About two months after they arrived in Australia the applicant’s mother told him she had escaped from her home as the authorities were frequently coming to her house and questioning her regarding the applicant’s whereabouts. After telling them that the applicant and his family may be in [Town 2], the authorities went to his in-law’s home and questioned them. They tied his father-in-law to a tree and interrogated him about the applicants. They beat his father-in-law because he refused to disclose the applicants’ whereabouts.

Decision

Reasons for decision

For the reasons given above I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.DECISION

Ratio Decidendi

Legal Principle Established

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