AVK18 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 986

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

  1. 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).

  2. For the reasons set out below, the application must be dismissed.

    BACKGROUND

  3. The applicant is a Tamil citizen of Sri Lanka.

  4. On…

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AVK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 986
Case
[2025] FedCFamC2G 986
Decision Date

CaseChat Overview and Summary

The applicant, a Tamil citizen of Sri Lanka, challenged the decision of the Immigration Assessment Authority (the Authority) to affirm the delegate's decision to refuse his application for a Safe Haven Enterprise (subclass 790) visa. The applicant, who entered Australia as an unauthorised maritime arrival in 2013, had his application for a visa refused in August 2017. His application was subsequently referred to the Authority for review. On 31 January 2018, the Authority affirmed the delegate's decision to refuse the visa application. The applicant's claims included his involvement with the Liberation Tigers of Tamil Eelam (LTTE) and the persecution he faced from the Sri Lankan authorities and the LTTE due to his family's connections and his alleged support for the LTTE.

The key legal issues the Court had to address were whether the Authority failed to afford the applicant procedural fairness, whether it ignored relevant information, whether it misconstrued or misunderstood the applicant's claims, and whether it relied upon incorrect country information. Additionally, the Court had to consider if the grounds of review invited the Court to undertake impermissible merits review.

The Court found that the Authority did not commit any jurisdictional errors. It properly considered the applicant's claims and the material provided. The Authority's decision was detailed and comprehensive, addressing the applicant's claims and providing reasons for its findings. The Court noted that the applicant's assertion that he should not be returned to Sri Lanka unless provided with a guarantee of his safety was misconceived, as there is no such obligation under the Act. The Court concluded that the Authority's decision was lawful and dismissed the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for 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.

Ratio Decidendi

Legal Principle Established

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.