AQN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 793
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 793
File number(s): SYG 2156 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 30 May 2025 Catchwords: MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error.
Legislation: Migration Act 1958 (Cth) Part 7AA, ss 5H, 36, 474 Cases cited: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 945
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZQFR v Minister for Immigration & Anor [2011] FMCA 785
SZQFR v Minister for Immigration and Citizenship [2013] FCA 574
SZRPA v Minister for Immigration and Citizenship [2012] FCA 962
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
Division: General Number of paragraphs: 31 Date of hearing: 5 March 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Teleo Lawyers Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2156 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQN19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived in Australia on 6 September 2012 by boat. On 31 October 2016 he lodged an application for a Safe Haven Enterprise (subclass 790) Visa (SHEV) with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Sri Lanka on the basis of his identity as a Tamil, his previous involvement by both employment and volunteer work with the Liberation Tigers of Tamil Eelam (LTTE) and perceived opposition to the Sri Lankan government, and as a returned failed asylum seeker. On 24 August 2018 the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The application was then referred under pt.7AA of the Migration Act 1958 (Cth) (Act) to the second respondent (IAA) for a review of that departmental decision.
The IAA decision the subject of these proceedings is the second such decision relating to the applicant. A previous IAA decision dated 25 January 2019 (First IAA Review) was quashed by consent 30 April 2019 and the matter remitted to the IAA for redetermination. On 16 July 2019 the applicant was again unsuccessful before the IAA (Second IAA Review) and has applied to this Court for judicial review of that decision.
In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
...
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
…
BACKGROUND FACTS
Materials before the Delegate
The applicant’s initial claims for protection in support of his application were made in his visa application, at an interview conducted by the Delegate on 20 July 2018, and were relevantly set out in the following materials:
(a)two written statements attached to his visa application dated 22 March 2013 and 31 October 2016; and
(b)post-interview written submissions provided by the applicant’s representative dated 3 August 2018 .
The claims that were originally before the Delegate were summarised in the Minister’s written submissions in the following terms:
a.From about 2003-2006, he worked in a paid position for the Liberation Tigers of Tamil Eelam (LTTE) in their media section. He was then forcibly recruited to undertake the same work unpaid until about January 2008.
b.By May 2009, the eastern province in which he resided became too insecure and unstable and so he fled to a nearby area control [sic] by the army. After being warned of the consequences of not revealing one's involvement with the LTTE, he decided to present himself to the detention centre.
c.The applicant remained in detention for 2 ½ years in which [time] he was repeatedly harassed, interrogated and beaten. He was eventually released in July 2011 and returned to his village.
d.However, he continued to experience problems. The Criminal Investigation Department (CID), Karuna group and Tamil Makkal Viduthalai Pulikal (TMVP) would visit his home and interrogate him about his involvement with the LTTE.
e.By June 2012, the CID continued to question the applicant's mother about his whereabouts. They threatened to also kill his brother and so the applicant told his mother to tell them of his location. The CID contacted the applicant, after obtaining his number from his employer, and made an arrangement for him to report to their office. However, the applicant did not attend and instead began making arrangements to leave Sri Lanka.
Materials provided during First IAA Review
During the First IAA Review, the applicant made further claims in the following submissions:
(a)written submissions dated 20 September 2018 and a written statement authored by the applicant dated 21 September 2018 (September 2018 Submissions);
(b)supplementary written submissions dated 31 October 2018 but emailed on 1 November 2018 (October 2018 Submissions) which sought to introduce new information not previously before the Delegate, relevantly consisting of:
(i)further claims canvassing political developments that had occurred in Sri Lanka in October 2018; and
(ii)references to various media articles which were published after the Delegate’s decision.
Materials provided during Second IAA Review
On 20 June 2019, following the remittal of the matter to the IAA for the Second IAA Review, the applicant was invited by the IAA to provide further information in response to which his representative provided written submissions dated 4 July 2019. In those submissions the applicant sought to introduce new information which had not been before the Delegate concerning political developments in Sri Lanka that had occurred after October 2018.
The applicant’s claims for protection made during the Second IAA Review were summarised in the Second IAA Decision in the following terms, relevantly:
•The applicant is a Hindu
…
•The applicant grew up in an LTTE controlled area. … He supported the LTTE like many of the Tamil population at the time. He was required to undertake compulsory defence training, including weapons training, with the LTTE.
•The LTTE was recruiting people for their campaign efforts and the applicant joined. … He was provided training in drama and film and he joined the media unit of the LTTE from around 2003. He was based in the Vanni area in the Northern Province. … He was involved in a number of roles including video editing, sound dubbing and filming LTTE events and he met senior LTTE officials as part of his role. The applicant provided voice over dubbing in a film produced in 2005 which promoted the continuing struggle of the LTTE even if defeated, and a further film made in 2007 about LTTE attacks; he was named under his pseudonym in the film credits for both films…
•In support of his claims the applicant provided links to LTTE material which he was involved with producing.
…
•In 2008 the civil war fighting intensified and people in the media unit were instructed to join the fighting units. Although he had received training he did not join the fighting but … escaped from the LTTE and along with thousands of other Tamils passed into government controlled territory in May 2009.
•He surrendered to government forces and self-declared his LTTE role as he knew there was an informant he had worked with in the media unit helping to identify those with LTTE associations and that he would not be able to escape detection.
•The applicant was detained in rehabilitation at various camps from … 2009 to … 2011 …
•The applicant was tortured while detained.
•The applicant has attended counselling in Australia and has provided a report from the NSW Service for the Treatment and rehabilitation of Torture and Trauma Survivors (STARTTS) dated 19 July 2018 and the post-interview submission quotes from STARTTS progress notes. One of these notes refers to the applicant reading the “scripts from his initial interviews with immigration” and his concern regarding gaps in his memory due to his past trauma. The applicant’s representative noted there are factual inaccuracies in the counselling reports, although did not specify these.
•Top LTTE leaders who were taken into custody by government forces went missing and the applicant was a witness to this.
•The applicant was released from rehabilitation detention in … 2011, his representative advanced that his extended detention indicates his strong LTTE involvement.
•On release he was provided an identity card by the International Organization for Migration (IOM), but this caused problems as people looked suspiciously at those with such cards. His mother assisted him to obtain a Sri Lankan National Identity Card which was issued in 2012 and recorded his changed name and correct date of birth.
•After his release in 2011 the applicant returned to his village … The CID and the paramilitary Karuna group and Tamil Makkal Viduthali Pulikal visited his home soon after his return to interrogate him and he was advised to report to their offices. He initially attended with his mother but was told to take her home and return alone. He became concerned for his safety and did not return to their offices. …
•The applicant … travelled to Trincomalee where he was not well known; he stayed with a friend and worked for a photography studio. He stayed in hiding in Trincomalee, Thiriyai and Kilinochchi until he left Sri Lanka in 2012.
•During this time the CID, or people claiming to be CID, and paramilitaries continued to visit his mother in Batticaloa to enquire about the applicant and they made threats to harm one of his brothers. They also visited his mother-in-law in Jaffna. The paramilitary groups kidnapped people for ransom. The paramilitaries carry out these activities to justify the continuing presence of the military against calls for Sri Lanka to demilitarise.
•Paramilitary groups sought to have the applicant become involved in their illegal activities and have attempted to trump up false charges against him.
•The applicant became concerned for the safety of his family and told his mother to tell the CID where he was located. The CID visited his employer who gave them his telephone number. The CID then called the applicant and demanded he attend their offices. The applicant decided to leave Sri Lanka and he departed illegally in August 2012.
•The applicant’s mother and wife continued to be harassed by the authorities and others and they continued to make threats against him and his brother. …
•Around 2012/2013, the TID came to his village and surrounding area and arrested former LTTE members who had completed rehabilitation.
…
•The applicant has posted material on social media. He fears the Sri Lankan authorities monitor social media and would be aware of his activities. The applicant has provided evidence of his social media activity. He has been involved in protests and commemorations. …
•He fears that the authorities are interested in him because of his past LTTE association and involvement in LTTE propaganda films. The suspicions involving him and the significant work he did for the LTTE will be heightened because he departed Sri Lanka while he was still of interest. …
•The applicant fears harm on the basis of being a failed asylum seeker. The applicant’s details were released in the data breach in 2014. He will be identified as an asylum seeker in Australia resulting in a profile that would attract adverse attention.
•There is ongoing political instability in Sri Lanka and rising Sinhalese nationalism may lead to increased harm to Tamils. Despite displaying to the world that the situation in Sri Lanka is normal the government is involved in using unidentified people in a discreet way, there are discreet killings and the use of poison.
•The sacking of Prime Minister Wickremesinghe in October 2018 and the appointment of former President Rajapaksa demonstrates the Sri Lankan government has no intention of reconciling with the Tamil population. Former President Rajapaksa was involved in human rights abuses against the Tamil people when in power and in the light of these events the situation for Tamils and those opposed to the regime or linked to the LTTE or Tamil separatism has become significantly worse. The terrorist attacks in April 2019 targeting Christian churches, and the subsequent complaint that Prime Minister Wickremesinghe was not informed of the related security intelligence, and the resignation of a number of Muslim parliamentarians demonstrates the fragility of governance in Sri Lanka.
•The applicant has ongoing mental health treatment requirements and he will be unable to obtain the required treatment in Sri Lanka which would impact on his ability to live and support himself in Sri Lanka. The STARTTS report stated he presented as highly distressed, depressed and anxious and needs ongoing support and counselling.
•The post-interview submission contends that “if the authorities suspect [the applicant] due to his status as a failed asylum seeker returning with significant scarring” he may be detained and interrogated.
THE IAA’S DECISION AND REASONS
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The IAA’s findings and reasons in the Second IAA Decision were summarised by the Minister in his written submissions in the following terms:
23.The Authority accepted the vast majority of the applicant's claims with respect to his involvement with the LTTE and his subsequent detention in a rehabilitation camp for over two years. The Authority was not satisfied that the applicant's extended detention indicated his strong LTTE involvement as asserted but found that even if it did, it was not satisfied that this would point to a real chance of harm should the applicant return to Sri Lanka. The Authority accepted that the applicant was visited by paramilitaries / authorities soon after his release but considered that their actions reflected a low level of interest and did not point to the applicant being a security concern. The Authority also found the applicant's ability to travel through security check points shortly after indicated that he was not of ongoing adverse concerns to paramilitaries or the authorities after his release from rehabilitation.
24.The Authority considered that if the applicant was of adverse interest to the authorities or paramilitaries, he would not have been able to continue living and working in Sri Lanka until his departure in 2012, including having to travel through the northern and eastern provinces. … The Authority did not accept the applicant was of interest to the authorities or paramilitaries nor that they made a number of visits to his mother up until 2016 nor that the TID came in search of him and laid false charges against him.
25.… The Authority was not satisfied that the applicant had any scarring but was willing to assess any experience he may face on the basis of possible scarring.
Claims for protection
26.The Authority was not satisfied that the applicant would face harm for his links with the LTTE or for being a rehabilitee and was not satisfied there was more than a remote chance the applicant would be re-detained. The Authority found there was no indication that the applicant had any involvement in the creation of political propaganda or that his profile was such that he would not be viewed by the Sri Lankan authorities as having influence in Tamil separatism advocacy, finding his involvement was limited to technical support, some acting, or voice overdubbing.
27.The Authority considered the applicant's political activities in Australia, including on social media and was not satisfied that the applicant's activities point to a profile of a Tamil separatist activist or other profile of concern to the Sri Lankan authorities, or that his political opinion would be of adverse concern. The Authority considered that if the applicant were to return to Sri Lanka, he would continue to follow news stories of human rights abuses and post or share these on social media but was not satisfied that this or similar activity would attract adverse attention or raise a real chance of harm to the applicant. The Authority did not accept there was a real chance that the applicant would come to harm from paramilitary groups interested in pursuing LTTE funds or for other reasons in Sri Lanka.
28.The Authority accepted the applicant received torture and trauma counselling in Australia and there were scarce mental health services in Sri Lanka but was not satisfied that the applicant would face serious harm as a result of his mental health condition. The Authority didn't accept that any difficulties the applicant may face because of his mental health condition would amount to or lead to serious harm as defined. The Authority considered that while the applicant may be questioned about any scarring, it was not satisfied this would result in a real chance of harm to the applicant. The Authority was not satisfied that the political turmoil or the terrorist attacks in Sri Lanka gave rise to concerns that the applicant would face harm in Sri Lanka.
29.The Authority accepted the applicant's details were released in the Department data breach and that the Sri Lankan authorities may be aware the applicant sought asylum but was not satisfied that his status as a failed asylum seeker would bring adverse attention to the applicant. The Authority was satisfied that the applicant may be visited by authorities on his return to his home village but was not satisfied that this was, or would lead to, serious harm. The Authority did not accept that any detention, questioning, or imposition of a fine or surety on account of the applicant's illegal departure would amount to serious harm. The Authority further found that the investigation, prosecution and punishment of the applicant for his illegal departure would be as the result of a law of general application. The Authority was not satisfied that there was a real chance the applicant would face serious harm for any of the reasons claimed.
30.Turning to complementary protection, the Authority was not satisfied that the applicant's claims regarding his mental health concerns amounted to or would lead to significant harm. The Authority was further not satisfied that any treatment the applicant would face on account of having left Sri Lanka illegally would amount to significant harm nor that any detention or any subsequent visits to the applicant as a failed asylum seeker would amount to significant harm. The Authority otherwise found that given real chance and real risk involve the same standard, the applicant would not face a real risk of harm on account on the remainder of his claims.
I adopt that summary.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
The IAA failed to complete the review and its decision is thereby affected by jurisdictional error.
Particulars
1.The IAA failed to make findings in relation to the chance or risk of harm the applicant might face arising from his Hindu religious belief; and
2.The IAA failed to make findings in relation to the chance or risk of harm that the applicant may face as a witness to war crimes.
Ground 1
The applicant submitted that the IAA made no finding concerning the possibility that he might face harm because he is Hindu although the Delegate had earlier considered the issue in the following way:
Although not explicitly raised by the applicant, I have considered the implied claim that the applicant is a Hindu from Eastern Province and that he is a minority in a predominantly Buddhist country.
There have been allegations of violations affecting Hindu places of worship and government sponsored movements of Sinhalese settlers to the Tamil-speaking areas in the north and east that are intended to change the demographics of the region, to the political disadvantage of the minorities. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information. There were reports of sanctioned religious discrimination under the former Rajapaksa Government, particularly through its support of the extremist Buddhist group Bodu Bala Sena (BBS). BBS operations re-ignited in late 2016 and continued throughout 2017, reportedly linked to attempts by former President Mahinda Rajapaksa to destabilise the current government. Further incidents of violence against religious minorities again flared in the first half of 2017 with BBS perpetrated attacks against Muslim and Christian minorities.
The applicant’s arguments proceeded on the basis that a claim to fear persecution on the grounds of religion was one which, although not articulated as such by him, nevertheless arose tolerably clearly from the material before the Delegate: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695. The point was not argued in any detail by the applicant. Nevertheless, it is arguable that such a claim was open having regard to the information concerning the BBS and for present purposes I accept, without finding, that it was.
The applicant observed in his written submissions that not only did the IAA have this material before it, but it had also received information from his representatives concerning terrorist outrages against Christian churches in April 2019 and the recrudescence of President Rajapaksa as a political force in Sri Lanka, he being appointed prime minister in October 2018. He argued:
Given this information and the delegate’s consideration of the matter the IAA needed to make findings on the risk of harm to the applicant as a Hindu. Its failure to do so was a failure to complete the review and is jurisdictional in nature.
The relevant conclusion drawn by the Delegate from the material cited was that:
.. the chance of the applicant facing persecution for the reason of his Hindu religion is remote. As such, I am satisfied the applicant does not face a real chance of serious harm in the foreseeable future for being a Hindu.
Significantly, having regard to that part of the Delegates decision, the IAA as originally constituted observed in para.19 of its reasons that the applicant
… did not raise claims related to his Hindu religion
and that the applicant’s representatives did not propound any claim based on his religion in their submissions to the IAA as first or secondly constituted.
The Delegate’s reasons formed part of the material before the IAA which, even if the unarticulated claim identified by the Delegate was not raised or relied on by the applicant, had to be considered by the IAA unless it was abandoned or withdrawn by the applicant: ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164 at 187 [72]; EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [115] – [117]. It has been suggested by reference to the decision of Judge Given in ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 945 at [94] that any such abandonment or withdrawal should be express but the Full Court of the Federal Court did not go so far in ESQ18 and her Honour advanced no reason why circumstances may not indicate that a claim has been abandoned implicitly.
The facts of the matter will determine whether that has occurred in this case, and they are relevantly as follows. First, notwithstanding that the applicant had not alleged that he feared harm in Sri Lanka on account of his religion, the Delegate found that he did not face a relevant risk of harm because of his religion. Secondly, the applicant made no submission on that issue to the IAA as first constituted. Thirdly, the First IAA Review stated that the Applicant did not raise claims related to his religion and made no findings on the question but, notwithstanding that the applicant had not raised his religion in the context of his potential status as a returning asylum seeker, it did find that he would not face relevant harm for being:
… a returning asylum seeker who is a Tamil male of the Hindu faith.
Fourthly the applicant did not make any submissions to the IAA as secondly constituted on the issue of his religion by reference to the Delegate’s decision or the First IAA Review. Significantly, the applicant did not seek to disabuse the IAA of its understanding that he was not making claims related to his religion.
In NABE v Minister at 20 [62], the Full Court of the Federal Court referred to what Gleeson CJ had said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1] in the context of the Refugee Review Tribunal, namely:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Whether a claimant is represented by professional advisers is relevant to whether a case that was not was articulated was one which ought to have been dealt with by the relevant decision-maker: SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513, 514 [30], [31].
In SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 the Refugee Status Assessment (RSA) assessor understood SZQFR to claim that in Afghanistan and Pakistan the Taliban would harm him because he was a young Hazara, a claim which appeared to have been made expressly in a written statement made by him on 3 April 2010 in which he said:
I believe if I return to either country the Taliban would harm me because I am a young Hazara.
The RSA assessor also referred to a submission made by SZQFR’s representative that:
… the claimant is a young man, and young men are particularly targeted by the Taliban.
The assessor concluded that if SZQFR were returned to Afghanistan he would not be persecuted in that country because of his religion or his ethnicity or, if he were to live in the Jaghori district or in larger cities such as Kabul, for some other reason peculiar to him, such as his youth.
SZQFR sought review of the RSA assessor’s decision by way of an Independent Merits Review (IMR), of which there were ultimately two. The submissions SZQFR’s representatives made on 20 July 2010 to the first IMR made no reference to his youth and the first IMR reviewer did not mention his youth as an element of his claims.Evidence given and submissions made to the second IMR did not refer to the applicant’s youth: SZQFR v Minister for Immigration & Anor [2011] FMCA 785 at [12]-[14], [46]. Although the second IMR referred to the 3 April 2010 statement in which SZQFR had said that the Taliban would kill him because he was a young Hazara, it appears to have understood SZQFR’s claims to have been those found in the 20 July 2010 submission made to the first IMR, which did not include a claim based on his youth. The reviewer concluded:
The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.
The reviewer also concluded that SZQFR had no well-founded fear of persecution in the Jaghori district for reasons peculiar to him.
SZQFR unsuccessfully sought in this Court judicial review of the second IMR decision which relevantly held that given the failure by SZQFR and his advisers to raise the matter in either IMR, he had abandoned reliance on any claimed fear of persecution for reason of being a young Hazara male. He then appealed to the Federal Court where he submitted only that the second IMR reviewer ought to have considered his claim to fear persecution by virtue of his being a young Hazara male. After considering the potential background to the claim based on youth and the practical difficulties attendant on the pursuit of such a claim, Dowsett J concluded:
I do not accept that there was any separate claim to fear persecution for reason of the appellant’s being a young Hazara male as opposed to his claim to fear persecution as an Hazara or as Shia. There was only one claim, and the Reviewer disposed of it on the basis of his findings. Even if there were a second, more limited claim, the Federal Magistrate correctly concluded that it had been abandoned. In the letter of 20 July 2010 which preceded the first IMR, there was no reference to such claim. In the letter of 10 November 2010 (after the unsuccessful first IMR), there was mention of the rights of the family and of children, but no reference to the appellant’s own youth. There was also no such claim in connection with the second IMR. The most likely explanation for this omission is that it was deliberate, and based upon a realization, following the RSA failure, that it added nothing to the more general claim. If either the appellant, or those representing and advising him considered that there was a second claim to fear persecution for reason of his being a young Hazara, the perceived distinction would surely have led to its being stressed, not completely overlooked. (at [57])
The facts of that case are not dissimilar from the facts in this one. Having regard to Dowsett J’s reasoning and given the history of the IAA reviews in this case, the submissions made to them and the fact that the applicant was represented at all relevant times, I find that the applicant chose not to challenge on review the Delegate’s finding that he did not face a relevant risk of harm because of his religion or to propound a claim of that sort notwithstanding that the Delegate had raised it as a possibility. To the extent that the applicant had such a claim I find that he abandoned it. That being so, the IAA as secondly constituted did not err by not considering that issue.
Ground 2
The applicant submitted in relation to the second ground of the application that the IAA made no express findings about the risks he faced as a witness to war crimes and that the following finding did not dispose of his claim to fear harm as such a witness:
There is no indication that he has sought to submit evidence or comments to any agencies investigating human rights abuses in Sri Lanka and I do not accept that he would seek to do so in Sri Lanka, or that he has any wish or inclination to do so.
He argued that such matters were irrelevant to the motivations of others to harm him because he had witnessed war crimes and it also did not address the availability of state protection against such harm.
At the outset it should be observed that the claim the applicant made to the Delegate, as recorded in the Delegate’s decision record was:
… that he will be harmed because he is willing to participate and provide evidence against the Sri Lankan authorities in any future war crimes proceedings
which is materially different from the allegation made in the second ground of the application that
The IAA failed to make findings in relation to the chance or risk of harm that the applicant may face as a witness to war crimes.
The IAA dealt with the claim that was actually made by concluding that the applicant would not be willing to participate in future war crimes proceedings and provide evidence against the Sri Lankan authorities. The evidence on which that conclusion was based was set out in paras 60-63 of the IAA’s decision record where it found that:
(a)the people detained were generally those with significant profiles as activists;
(b)the applicant had not been involved as an activist, human rights campaigner or similar since being in Australia despite the greater freedom to do so here;
(c)the applicant did not have the profile of a Tamil separatist activist, another profile of concern to the Sri Lankan authorities or a political opinion that would be of adverse concern;
(d)the extent of the applicant’s activity since leaving Sri Lanka did not indicate a political opinion in support of Tamil separatism, there being no indication that he had produced material promoting a separate Tamil state or shared the same despite the greater freedom to do so in Australia.
(e)there was no indication that the applicant had sought to submit evidence or comments to any agencies investigating human rights abuses in Sri Lanka; and
(f)should the applicant return to Sri Lanka he might continue to follow news stories of human rights abuses and post or share these on social media but the IAA was not satisfied that this or similar activity would attract adverse attention or create a real chance of harm.
The IAA addressed the applicant’s claim as made, not its recast form pleaded in his application. The contended-for error has not been demonstrated.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 30 May 2025
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