AVK18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 986
•1 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 986
File number(s): SYG 486 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 July 2025 Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – Immigration Assessment Authority – whether the Authority failed to afford the applicant procedural fairness – whether the Authority ignored relevant information – whether the Authority misconstrued and misunderstood the applicant’s claims – whether the Authority relied upon incorrect country information – grounds of review invite the Court to undertake impermissible merits review – Application dismissed. Legislation: Migration Act 1958 (Cth) ss (4)(a), s 5H(1), s 5J 36(2), 473CB, 473DB(a), 473DC(2), 473DD, 473GA, 473GB, 476(2)(9a), Division 3 of Part 7AA. Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 19 June 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Ms Coleman Solicitor for the First Respondent: Ms Warren (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 486 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVK18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
1 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to read ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 31 January 2018, affirming a decision of a delegate of the First Respondent (the delegate) refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV) (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a Tamil citizen of Sri Lanka.
On or around 26 May 2013, he entered Australia as an unauthorised maritime arrival.
The applicant met his now wife after arriving in Australia. They had a child together in March 2017. The applicant’s wife and infant son have lodged separate SHEV applications.
In July 2016, the applicant applied for a SHEV. On 3 August 2017, the delegate refused the applicant.
On 9 August 2017, the applicant was notified that his application had been referred to the Authority for review. The applicant was informed that for the purposes of the review, he could provide the Authority with written submissions.
On 25 August 2017, the applicant sent an email to the Authority, which is reproduced at CB 182.
On 31 January 2018, the Authority affirmed the delegate’s decision
This matter was initially listed to be heard contemporaneously with the applicant’s wife and sons’ judicial review applications. On 23 May 2025, by consent, the Court made orders discontinuing the wife’s and sons’ judicial review applications: (SYG 484 of 2018 and SYG 485 of 2018).
THE AUTHORITY’S DECISION
At [4]-[8] of the Authority decision, it considered the material before it, given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (the Act).
The applicant’s claims for protection are summarised at [9] as follows:
•He is a Tamil Catholic who was born and lived most of his life in SK District in the Northern Province of Sri Lanka. He has only ever worked as a fisherman since he was 14; he only completed eight years of schooling.
•There is a history of disappearances, abductions and killings involving members of his family:
a)When he was very young, his half-brother, R went missing when he went to join the Liberation Tigers of Tamil Eelam's (LTTE's) Sea Tiger Movement. He was a captain or held an important position aboard his LTTE vessel. He does not know who took R or what has happened to him since. He is still missing and presumed dead. The applicant attended Martyr's Day celebrations in Sydney in 2016 and prayed for his brother.
b)When he was around 14 years old, his other half-brother, R2 was abducted by a white van. R2 returned home approximately two months later but did not share any details of his abduction with the family. The applicant suspects he was abducted by the Criminal Investigation Division (CID) although he does not know why. When R2 was abducted, the army came and questioned his mother. He is now estranged from R2 and his father.
c)His cousin, S, to whom he is very close, was almost shot by the CID, just after they shot his best friend. Plain clothed men were coming down the street shouting for S but he was alerted to this and escaped out the back door. The applicant believes Sn has fled to Qatar. S's brother-in-law was also shot dead by the CID.
d)His uncle was killed in a bomb blast and another cousin was wounded by shelling.
e)They were not involved in the fighting.
•SK was LTTE controlled until around 2007 or 2009. In the course of his work as a fisherman, the LTTE would ask him for fish and as a result, he delivered a lot of fish them, meeting them on an Island, away from mainland view. The LTTE also provided him with self-defence training in around 2008 or 2009. They showed him how to dive under water and hold his breath if the navy was shooting at them, how to carry a gun and balance it on his shoulder.
•Later, in around 2011, after the war had officially ended and the authorities were searching for former LTTE members who were in hiding, he began assisting the LTTE, information gathering for them. He used to inform for them by advising former LTTE members of army movements. He did not disclose this earlier for fear of being returned to Sri Lanka.
•The LTTE asked him to join them but he refused. He is not a supporter of the LTTE.
•Sometimes the Sri Lankan military would punish him for fishing without a fishing pass or for going beyond the fishing limits. The military would also sometimes force him to work for them, cutting trees and carrying bricks for around five hours at a time.
•In the lead up to his departure from Sri Lanka, he was arrested by plain clothed CID or Army officers. He was held in custody for about one day at a camp in U. While in custody, he was physically assaulted and accused of spying for the LTTE. He was told to be careful and that he was targeted. He was only released after a 'red mark' was put against his name in an exercise book with people's names.
•Many other people who had been given the 'red mark' have been hurt. This scared him. He went to K and hid at his aunt's house for around three months.
•He fears that if returned to Sri Lanka, he will be seriously hurt, detained or killed. He fears harm because his brother was a member of the LTTE, because he received self defence training from the LTTE, provided them with fish and did surveillance work for them. He believes he will be seen as a supporter or member of the LTTE. He also fears harm in Sri Lanka for having claimed asylum in Australia.
•He fears for the safety of his wife and baby if something were to happen to him.
•He also fears discrimination on return to Sri Lanka as account of his wife being an Indian born Tamil.
The applicant and his representative acknowledged that there were some problems, including inconsistencies with the applicant’s evidence. The applicant attributed these inconsistencies to misunderstanding what was being asked of him during the visa application interview, being confused by the adverse information being put to him, finding it difficult to explain events or express himself, and suffering from memory problems [11]. It was submitted that the applicant’s young age when leaving Sri Lanka and his limited education should be taken into account when assessing the applicant’s evidence. The Tribunal was not satisfied, despite taking these factors into account, that they explain or overcome all the concerns it held [11].
The Tribunal assessed the applicant’s claim to fear harm from the Sri Lankan authorities in respect of his family links to the LTTE, because he received self-defence training from the LTTE, provided them with fish, and did surveillance work for them on the army’s movements.
In relation to family and personal links, the applicant made various claims regarding his half-brother, ‘R’. Namely, that ‘R’ held an important position on an LTTE Sea Tiger vessel but went missing during the war and was presumed dead [13]. The applicant claimed that another one of his half-brothers, R2, had been abducted, probably by the CID in a white van, and held for two months [14]. The applicant further claimed that his best friend, ‘S’, was shot by the CID and shortly thereafter targeted [14].
As to R, the Authority accepted that R joined the Sea Tigers and went missing between 2003 and 2007. The Authority took issue with R’s young age at the time of his disappearance and found the applicant’s evidence surrounding these events to be vague and indicative of the applicant knowing little about R’s profile and circumstances [16]. The Authority was not satisfied that R held a senior or prominent rank in the LTTE [16]. The Authority was also not satisfied that the applicant was questioned about R during roundups that were imposed on the general Tamil population as part of routine monitoring during the war [17].
As to R2, the Authority was prepared to accept that he was abducted and detained for around two months before being released. The Authority did not accept that the applicant was taken into custody and detailed in relation to R2’s activities or his connection with him [19].
The Authority was prepared to accept the evidence in relation to S and that the incidents detailed by the applicant ‘coloured his fear’, however, it did not accept that the applicant was of concern to the authorities on account of those incidents or his links to these people. The Authority did not consider that the events indicated there was a risk of harm to him [20].
At [21], the Authority was not satisfied that any members of the applicant’s family had suffered harm or been questioned in relation to their LTTE family links since the end of the war. The Authority did not accept the applicant was ever of any interest to the authorities in the post-war period in relation to his connection with R, R2 or S, or that he would be of adverse interest to the authorities, nor that he has an imputed pro-LTTE profile on the basis of any family or personal links.
The Authority accepted that, while working as a fisherman, the applicant was sometimes required to give a portion of the fish stocks to the LTTE, and that he completed some self-defence training with the LTTE to learn to protect himself against the Sri Lanka Navy [22]. Based on the evidence before it, the Authority was satisfied that the training occurred, but held that it was only general training offered to all fishermen in the area. The Authority was concerned with inconsistencies in the applicant’s evidence and did not accept that the applicant received weapons training [22]-[23]. In relation to this claim, the Authority did not believe it contributed to the applicant having an LTTE profile or being of any interest to authorities [24].
The Authority held concerns about the applicant’s claim that he did surveillance work for the LTTE, and at [25]-[30], the Authority considered all the relevant evidence. In an interview with the applicant, the delegate had put to the applicant concerns with the claim that he was approached by the LTTE in 2010-11 for surveillance work, given that country information indicated there was no LTTE in that region at the time. The Authority accepted that some former LTTE members were still around and had not all been killed in the war, however, it found it altogether implausible that there was any utility in the applicant informing former LTTE members about the whereabouts of the army [28].
The Authority noted the applicant’s responses about the time involved his fishing schedule and his capacity to survey the army for the LTTE, but was satisfied that he would not have been of any use as an informant and could not accept that he was able to keep watch on the army camp or their local movements from the LTTE [29].
The Authority weighed its concerns about the discrepancies and implausibility in the applicant’s claims and did not accept that he had ever worked as an informant for the LTTE during its existence or for former LTTE members after the war [30].
The applicant’s claim in regard to being arrested by the CID and held for a day at the camp is discussed at [31]-[36]. The Authority noted that the applicant’s timeline of events is ‘inconsistent’ [32] and ‘problematic’ [33]. The Authority did not find that the applicant’s comprehension, memory problems, and limited education would explain such variances in the claimed dates of the incident. Further, the Authority did not accept that the applicant was formally arrested, charged or held for any more than a few hours, that he was targeted on the basis of any perceived profile as a Tami male in the North or that he was suspected of spying [34]. Given the applicant was released on the same day without any formal charges, the Authority believed this indicated that he was not a continuing interest to the authorities and did not find that the warning he was given upon his release or the red mark against his name indicated a threat on him by the authorities [35].
The Authority was satisfied that the applicant would have been subjected to manual labour during the war, however, this would not have occurred in 2012 – 2013 or influenced the applicant’s decision to leave Sri Lanka. The Authority did not accept that the forced labour or problems with being ‘punished’ for fishing without a fishing pass arose from suspicion in the applicant by authorities or the LTTE [39].
There was no evidence before the Authority to suggest the applicant was involved in a Martyr’s Day celebration in Australia or any other Sri Lankan diaspora activities. The Authority was prepared to accept that the applicant attended a single Martyr’s Day event, and his participation was low-level. The Authority did not accept that the applicant’s participation would have alerted the attention of the authorities in Sri Lanka or that he would be imputed with a pro-separatist profile or any profile of concern relating to the Tamil diaspora [40].
The Authority was satisfied that the applicant did not face problems in Sri Lanka on account of his religion, nor did he fear harm for this reason on his return to Sri Lanka [41].
In making its refugee assessment under s 5H (1) of the Act and considering the components of a well-founded fear of persecution under s 5J of the Act, the Authority considered each of the applicant’s claims in turn.
Tamil LTTE links
The applicant and his representative raised concerns about ongoing arrests and disappearances in Sri Lanka. The Authority considered sources of country information reporting human rights abuses and was ultimately satisfied that the situation has improved and the Sirisena Government has taken steps to curb the excesses of military power exercised under the authoritarian Rajapaksa government. The Authority accepted an assessment by the Department of Foreign Affairs and Trade that any torture perpetrated by military, intelligence or police forces is not presently systemic [45]-[46].
The Authority was satisfied that the level of discrimination and harassment in the country towards Tamils is low and would not constitute serious harm [47]. Further, country information did not suggest that Tamils are at risk of persecution in Sri Lanka purely on account of their race, nor where they originate from, or if they reside in an area that was previously controlled by the LTTE.
At [49], the Authority considered the UNHCR’s 2012 ‘Eligibility Guidelines for Assessing the International Needs of Asylum Seekers from Sri Lanka’ but concluded that international protection would only be required for those with identified risk profiles, including those with a significant role in the LTTE, journalists or human rights activists, or those perceived to be active in post-conflict Tamil separatism.
The Authority was not satisfied that the applicant would be found to have had any LTTE related roles during or after the war and would be of interest to the authorities upon return [50]. The Authority had already found that the applicant was not of any adverse interest to the authorities on account of personal and family links, or from self-defence training and the provision of fish, nor that he had engaged in any surveillance/informant work [50]. The applicant was not of interest to the authorities in Sri Lanka in relation to the LTTE or other reasons after he departed Sri Lanka, nor would he return under suspicion as an LTTE sympathiser, threat to the state or with any associated risk profiles.
The applicant’s profile was not considered by the Authority to be one under which he would face a real chance of harm upon return or that he would otherwise have a well-founded fear of persecution from the authorities on the basis of any imputed LTTE links [51].
Forced labour, fishing problems
At [52] and [53], the Authority found that the applicant would not face harm upon return to Sri Lanka on the basis of any of these matters.
Indian born wife
The applicant claimed to fear discrimination on the basis that his wife was an Indian born Tamil. Taking into consideration country information, which indicated that the caste system was still operating in Sri Lanka, it was considered that the information does not support that caste ideology manifests into discrimination or any form of mistreatment amounting to serious harm [54]. Country information did not suggest that returnees from India and their family members are not imputed with LTTE membership on the basis of their residence in India, even if that residence was lengthy, and further, the applicant’s wife would be one of many thousands of returnees [55].
The Authority was not satisfied that the applicant’s wife would be imputed with an LTTE or separatist profile on the basis of her birth or residence in India. The Authority accepted that as with other returnees, the applicant’s wife would suffer some administrative and lifestyle difficulties, however, this would not rise to impute her with an LTTE profile and the applicant would not be so imputed or face discrimination on account of her profile [56].
Returnee asylum seeker, data breach, illegal departure
The Authority accepted that the applicant would be identifiable to authorities at the airport as a failed or returning asylum seeker, but after considering the applicant’s personal circumstances and country information before it, determined that the applicant would not face a real chance of harm on this basis [61].
The Authority was not satisfied that the applicant would face a real chance of harm on account of having left Sri Lanka to seek asylum or having been in immigration detention here and subject to the data breach, with all circumstances considered [63].
The authority accepted that the applicant may be questioned and detained at the airport. The authorities would become aware that the applicant had committed an offence by departing Sri Lanka other than via an approved port of departure, however, the Authority was satisfied there was only a remote chance the applicant would be detained in such a manner as detailed by DFAT [65]. The Authority was satisfied that any period of detention would be brief and the chance that the detention would result in serious harm to the applicant would be remote [66]. The Authority was not satisfied that the applicant would face a threat to his life or liberty or other harm amounting to serious harm as a result of the removal process, processing at the airport or any brief period of detention.
At [66], the Authority was not satisfied that the applicant could not pay a fine of up to 200,000 LKR if he were to be issued a fine for illegally departing the country. Even with the applicant’s limited education, memory and comprehension problems, there was no evidence to suggest the applicant was impaired from working independently and returning to his fishing vocation [69].
The Authority was satisfied that Sri Lanka would still be familiar to the applicant, since he had left as a teenager and that he would have access to emotional and practical reintegration support [70]. The Authority took into account the challenges the applicant may face readjusting to life in Sri Lanka, obtaining shelter and employment, helping his wife and child adjust to Sri Lanka, but ultimately found that the applicant would be able to draw on family support.
In the circumstances, the Authority was not satisfied there was a real chance the applicant would face a threatened capacity to subsist upon return, or that the threat of the payment of a fine amounted to a hardship which would threaten this capacity [71]-[72]. Overall, the Authority did not find that the applicant faced a real chance of persecution arising from his illegal departure, his detention and asylum application in Australia and the circumstances he will face through returnee processing [74].
The applicant did not meet the criteria for a protection visa under s 36(2)(a) of the Act. The applicant did not meet the criteria of a member of the same family unit as a person mentioned in s 36(2)(a) of the Act on account of his wife’s application. As the Authority had decided that the applicant’s wife did not meet the refugee or contemporary protection criteria, the applicant did not meet the family unit criteria in either s 36(2)(b)(i) or s 36(2)(c)(i) of the Act.
The decision under review was affirmed by the Authority.
GROUNDS OF JUDICIAL REVIEW
The applicant’s five grounds of judicial review are contained in an Originating Application filed with the Court on 23 February 2018. The grounds are as follows (less particulars):
1.The Respondents failed to give the applicant the opportunity to explain his claims and made a jurisdictional error on the grounds of procedural fairness.
2.The Respondents failed to take into consideration and ignored relevant facts in the statement of claims and thus made a jurisdictional error.
3.The Respondents misconstrued and misunderstood the claims and came to a wrong decision in rejecting the Applicant's claims and made a jurisdictional error.
4.The Respondents used excessive authority in rejecting the Applicant's statement during the interview that the LTTE had been defeated but they were not destroyed. The Applicant further stated that the LTTE were still in the area.
5.The Respondents failed to give further consideration to relevant facts in his claim and made a jurisdictional error in ignoring them.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case.
The applicant told the Court that when he came to Australia, there were 85 people on the boat and that he was one of seven who were not immediately deported. The applicant submitted that this was because he had a valid case for protection. The applicant claimed that Australian authorities are aware of what is happening in Sri Lanka.
The applicant stated that he could not go back, because Australia could not guarantee what will happen there. The authorities are aware of what is still happening in Sri Lanka.
The applicant noted that the Authority had accepted some of his claims but rejected others. The applicant stated that he was unable to recall things in chronological order due to trauma he had faced in the past, and he should not be disadvantaged because of that.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that he has been in Australia for 13 years, and there were still threats to his life should he return to Sri Lanka. Further, the applicant’s wife and child are in Australia.
THE FIRST RESPONDENT’S SUBMISSIONS
In reference to the applicant’s contention in ground one, that the Authority should have found exceptional circumstances to justify consideration of the information, the first respondent relevantly notes that the Authority was guided by Division 3 of Part 7AA of the Act, together with ss 473GA and 473GB. Those sections relevantly provide for the requirements of natural justice in relation to reviews conducted by the Authority.
The Authority had a primary requirement to conduct its review pursuant to s 473DB(a) of the Act, without accepting or requesting new information. Pursuant to s 473DC(2), the Authority also did not have a duty to get, request or accept, any new information even if the applicant specifically requested.
Section 473DD relevantly states:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The Authority, in considering the applicant’s statement at [9] of the decision record, considered the elements of s 473DD and found that the information provided did not engage s 473DD(b)(i), in that it was not new information that could not have been provided prior to the delegate’s decision. While it was accepted that the new information “may” amount to credible personal information, the Tribunal was not satisfied that there are exceptional circumstances to justify the receipt of that information.
It was further submitted that the new information could not realistically have made a difference to the outcome, even if it had been considered by the Authority. The Authority considered and implicitly accepted the account of the applicant that he hid in his aunt’s house for three months prior to departing Sri Lanka, however, it found he was not of interest to the authorities. There was no evidence that authorities had approached the aunts’ or neighbours’ houses in search of him. Further, the authority found he also left the house from time to time to do some road construction work. The new information as to other hiding places used by the applicant could not overcome any of these concerns. The information was thus not material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [7], [14] and [16].
Ground two is an assertion that the Authority failed to take into consideration and ignored relevant facts in the statement of claims. It was submitted that this ground fails at a factual level. Contrary to the applicant’s particulars, the Authority expressly accepted that the applicant’s half-brother, R2, was detained for around two months during the war before being released. The Authority also accepted the applicant’s claims about his cousin, S, being targeted by the CID in the manner claimed. The Authority also accepted that R joined the Sea Tigers and went missing during the war and is presumed dead. The assertion that the authority failed to consider this information in the requisite sense cannot be sustained.
The material contained in the particulars is difficult to follow. There is no record of the authority requesting any information as to the abduction of R, or to R’s claimed position of in the LTTE. Given that R was between 14 and 18 years old when he went missing, and in circumstances where the applicant’s evidence about R’s circumstances was “vague”, the Authority was not satisfied that R held a senior or prominent rank in the LTTE. There was no error identified in that conclusion.
Ground three is a claim that the Authority “misconstrued and misunderstood” the applicant’s claims and “came to a wrong decision”. The particulars set out by the applicant contending the Authority first failed to give importance to his provision of fish to the LTTE, second, failed to accept he had undertaken self-defence training with the LTTE and third, misinterpreted the applicant’s defence training as “general training offered to all fishermen in the area”
It was submitted that to a large extent, these are little more than expressions of disagreement with the findings of the Authority and an invitation for the Court to engage in impermissible merits review.
As to the first issue, being the weight to afford to the applicant’s provision of fish to the LTTE, it would be necessary to establish that this conclusion lacked “an evident and intelligible justification such as to be legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. The Authority accepted that the applicant had supplied fish to the LTTE from time to time but observed that the applicant had never been questioned about this, or this had otherwise caused him to be of interest to the authorities [24]. The applicant did not suggest otherwise. Absent any evidence of that kind, the Authority’s reasoning on this point is an evident and intelligible justification.
As the second matter, this fails on the facts. The Authority accepted that the applicant had undertaken self-defence training with the LTTE: [23].
As to the third matter, the Authority held concerns about inconsistencies in the applicant’s evidence regarding self-defence training, including whether he undertook the training alone or that it was given to all fishermen in the area at the time. The Authority observed that the LTTE did, from time to time, provide self-defence training to civilians. The Authority accepted that the applicant had undertaken some training of this kind. The Authority found, however, that the applicant was not singled out for this training. It was submitted that the conclusion is not legally unreasonable, it is consistent with the applicant’s own account at his SHEV interview (CB 31 at [40(a)]).
Ground four in substance represents a complaint that the Authority erred in rejecting the applicant’s statement that the LTTE had been “defeated but not destroyed”. The applicant argues that this is “arbitrary”, and that “former LTTE cadres are still at large… could regroup once again’.
It was submitted that the premise for this challenge does not accord with the Authority’s reasons. The Authority expressly accepted the applicant’s claim “that sum former LTTE members were still around and in hiding for the authorities’; [28] in the by reference to country information, the Sri Lankan government remained “sensitive to the potential reemergence of the LTTE” [48].
Thus, while there remained a risk of the LTTE re-emerging, country information did not indicate that “Tamils are currently at risk of persecution in Sri Lanka purely on account of their race, nor when or where they originate from, or reside in an area previously controlled by the LTTE. There is no error in that reasoning. With respect to the claim that the Authority failed to understand that the applicant had met the LTTE off the coast and provided them with fish, this was, in fact, accepted by the Authority and has no substance.
Ground five is a claim that the Authority failed to consider further facts in relation to his claim and ignored them. The particulars set out a number of alleged errors.
The first error relates to the claim that the applicant undertook surveillance work for the LTTE. This complaint does not accurately reflect the Authority’s careful and detailed reasons for rejecting the applicant’s claim that he worked as an informant for the LTTE or partook in surveillance activities on their behalf: [25] – [30]. The Authority noted that given the northern province was heavily militarised, it was “implausible that was any utility in the applicant” informing former LTTE members about our movements. Further, the applicant made no mention of carrying out surveillance activities in his entry interview or SHEV application.
The Authority further observed it considered the applicant’s explanations, “including his claimed memory problems” for failing to mention any participation in these activities, but considered these explanations implausible, given the applicant’s willingness and ability at earlier points in time to identify the nature and extent of his LTTE participation.
In relation to the contention that the Authority “completely ignored” the applicant’s memory problems, this should be rejected.
First, the Authority gave repeated consideration as to the claimed memory problems, both generally and in respect of his claim to surveillance work, but was not satisfied that this explained or overcame its concerns with his account.
Second, the Authority expressly considered whether to exercise its discretion to seek a medical report at [7]. None had been provided by the applicant. The Authority identified it had no duty to get, request to accept any new information. The Authority was satisfied the applicant had ample opportunity to provide a medical report or other information. In those circumstances it was not unreasonable for the Authority to proceed without seeking new information. This decision does not disclose any jurisdictional error.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
It is well settled that the selection of country information and the weight it gives to that information is a matter for the Authority: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
The written decision of the Authority is both comprehensive in its coverage of the applicant’s claims and detailed as to the reasons why it finds those claims cannot be sustained.
The Court notes the assertion by the applicant that he should not be returned to Sri Lanka unless he can be provided with a guarantee of his safety. This assertion is misconceived. The applicant is only entitled to stay in Australia under a protection visa if they meet the requirements set out in section 36(2)(a) of the Act or s36(2)(aa).
Neither of these sections creates an obligation on Australia to guarantee the safety of the applicant upon return. A person is entitled to protection if they face a real chance of persecution upon return, or there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to the receiving country, there is a real risk that the person will suffer significant harm.
The Court agrees with the first respondent’s submissions that, insofar that the application appears to make reference to asserted errors by “the respondents”, the Court does not have jurisdiction to review the decision of the delegate: s476(2)(9a), (4)(a) of the Act. This judgement, therefore, will only deal with asserted errors insofar as they relate to the Authority.
Ground One
Ground one is a claim of a lack of procedural fairness by reference to the fact that the Authority refused to accept new information regarding the applicant’s hiding places.
The receipt of new information is governed by the provisions of Part 7AA of the Act. Firstly, the Authority is directed by s 473DB of the Act to conduct its review without accepting or requesting new information and without interviewing the referred applicant. Any new information provided by the applicant must meet the requirements of s 473DD (a) and (b) before being accepted. Thus, information must either be not known or could not have been provided to the Minister before the decision was made (s 473DD(b)(ii)), or is credible personal information which was not previously known and, had it been known, may have affected consideration of the applicant’s claims: (s 473DD(b)(ii)). Even if the conditions of s 473DD(b) are met, the Authority must be satisfied that there are exceptional circumstances in order to justify the receipt of the information: s 473DD(a).
At [4] – [8], the Authority noted the information that was before it. The Authority correctly considers whether or not it should consider an email received from the applicant regarding where he hid prior to leaving Sri Lanka. The Authority noted that no explanation was provided as to why this information was not previously disclosed. It noted that the material may, if true, amount to credible personal information. However, the Authority was satisfied that there were no exceptional circumstances to justify the consideration of this information. The Court is satisfied that the Authority firstly considered whether the new information met the criteria in s 473DD(b)(i) and (ii) of the Act, to inform as to the existence of exceptional circumstances in s 473DD(a). The Court is not satisfied that there was any error in the way that the Authority went about its consideration as to whether or not to accept the new information. Ground one has no merit.
Ground Two
Ground two is an assertion that the Authority failed to take into consideration and ignored relevant facts in the applicant’s statement of claim. The Court accepts the submission of the first respondent that this ground fails at the factual level. As noted by the first respondent, the Authority expressly accepted that R was abducted for about two months and that R2 was a member of the LTTE Sea Tigers and went missing during the war, and is presumed dead.
Having accepted these claims, the Authority was entitled to consider them on the basis of how they might impact on the applicant’s claims. The findings at [13] – [21] are unremarkable, in that they set out a logical thought process for the conclusions arrived at, by reference to the evidence together with the discrepancies and inconsistencies in the applicant’s claims. For example, it was open to the Authority to find that R2 was not a senior member of the LTTE Sea Tigers, given his age at the relevant time of between 14 and 18 years. The Court is not satisfied that any relevant facts were ignored or that the Authority failed to consider them in its consideration. This ground, if anything, merely expresses disagreement with the factual conclusions arrived at by the Authority and invites the Court to undertake impermissible merits review. Ground two has no merit.
Ground Three
Ground three is a broad claim that the Authority misconstrued and misunderstood the claims of the applicant. The applicant claims the Authority did not give importance to the fact that the applicant provided fish to the LTTE, and was not prepared to accept that the applicant had self-defence training with the LTTE. Again, this ground merely expresses disagreement with the factual findings of the Authority and invites the Court to undertake impermissible merits review.
The Court agrees with the submission of the first respondent that it was for the Authority to determine what weight to give to the applicant’s claim of the provision of fish to the LTTE. The Court notes that the Authority actually accepted the applicant provided fish to the LTTE from time to time at [22] of the decision record. This was a finding that was open to the Authority, based on the evidence that was before it and for the reasons it gave. There is nothing in the finding that would meet the stringent requirements for a finding by this Court of legal unreasonableness.
The Court is satisfied that the Authority did in fact accept the applicant had undertaken self-defence training with the LTTE. This aspect of the claim is misconceived.
The last aspect of this claim relates to whether or not the applicant undertook the self-defence training either alone or whether it was general training offered to all fishermen in the area and he was not singled out. The Authority noted that the applicant never claimed to have been questioned in relation to this training or that authorities had any knowledge that he had undertaken this training. The Court is not satisfied that the Authority either misconstrued or misunderstood the applicant’s claims. The conclusion reached was available on the evidence for the reasons given. Ground three has no merit.
Ground Four
Ground four complains that the Authority used “excessive authority” in rejecting the applicant’s statement that the LTTE had been defeated but not destroyed, and was still in the area. The applicant’s contention was that former LTTE cadres were still at large and could regroup once more.
The Authority accepted at [28] that some LTTE cadres are still in existence and hiding from the authorities. It noted the sensitivity of the Sri Lankan government to the potential reemergence of the LTTE at [48].
Notwithstanding this, the Authority, in the Court’s view, made a finding that was open to it at [48], that Tamils in Sri Lanka were currently not at risk of persecution purely on account of their race, where they originate from or reside in, even if it was an area previously controlled by the LTTE. In the Court’s view, there was no error in this reasoning. Ground four reveals no error.
Ground Five
Ground five is a claim that the Authority refused to accept that it was plausible that the LTTE exists in any organised fashion for the applicant to do surveillance work for them. The Authority, by reference to country information, found that northern areas of Sri Lanka were heavily militarised and that it was “implausible that there was any utility in the applicant” informing former LTTE members about army movements.
Further, the Court accepts that the applicant made no mention of carrying out surveillance activities either in his entry interview or his SHEV application. The Court accepts the first respondent’s submission that the applicant has not identified any flaw in the Authority’s reasoning process, and the conclusion arrived at was one that was open on the evidence and for the reasons the Authority gave.
The Court also notes that the Authority made specific mention of the applicant’s explanations for failing to mention these activities previously, including his claimed memory problems. The Authority was not provided with any medical evidence to support the claim that the applicant suffered from memory difficulties, notwithstanding that he had an opportunity to do so. As indicated above, it is for the applicant to show that they meet the requirements for protection, and it is not encumbered upon the Authority to either investigate his claims or seek additional information, noting in particular the requirements of s 473DC of the Act.
Ground five reveals no jurisdictional error.
DETERMINATION
As the applicant is self-represented, the Court has considered the material contained within the relevant Court book together with the Authority’s decision record. The Court is unable to ascertain any articulated jurisdictional error. In these circumstances, the Application must be dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 1 July 2025
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