AVX18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 470
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVX18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 470
File number: MLG 465 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 3 April 2025 Catchwords: MIGRATION – Judicial review – where Applicant asserts failure by the Immigration Assessment Authority (‘Authority’) to conclude he did not face a real chance of harm in the process of being screened on return to Sri Lanka and also asserts the Authority failed to consider he would face significant harm because of his status as a failed asylum seeker travelling on a temporary travel document and because of prison conditions on his return – no error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 35(2A), 473DD. Cases cited: AJL18 v Minister for Home Affairs [2020] FCA 491
CSR16 v Minister for Immigration and Border [2018] FCA 474
Minister for Immigration, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 19 March 2025 Place: Melbourne Advocate for the Applicant: Self-Represented Litigant Advocate for the Respondents: Mr O’Shannessy of Mills Oakley Lawyers ORDERS
MLG 465 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application filed on 23 February 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding, fixed in the sum of $6,300.
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 BLAKE:
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 8 February 2018. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’) (Court Book (‘CB’) 170).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 14 October 2012 as an unauthorised maritime arrival (CB 126). He applied for the visa on 30 September 2016 (CB 91).
On 30 March 2017, the Applicant attended a Protection Visa interview (CB 127). On 11 May 2017, the delegate refused to grant the Applicant the visa. The matter was subsequently referred to the Authority on 16 May 2017 (CB 143).
On 2 June 2017, the Applicant’s then representative provided written submissions to the Authority (CB 156-162).
On 8 February 2018, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant filed his Application for review in this Court on 23 February 2018 (‘Application’). The Application was accompanied by an affidavit from the Applicant. Despite being given the opportunity to do so, the Applicant did not file any amended application or written submissions. The Applicant appeared before me unrepresented.
The Minister filed a Court Book and relied on his written submissions.
THE DECISION OF THE AUTHORITY
In its decision (‘Reasons’), the Authority:
(a)noted the information it had before it from the Department and also considered new information that had been given to it by the Applicant, including whether to have regard to that new information at paragraphs [3]-[6] of its Reasons;
(b)set out the Applicant’s claims at [7] of the Reasons. In setting out these claims, the Authority noted that:
(i)the Applicant initially claimed that between May 2009 and October 2010 he was detained in two youth rehabilitation and training centres;
(ii)the Applicant later claimed that he had actually been involved with the LTTE after being compelled to become a member in 2008 and that he provided support to the LTTE, and that he was subsequently jailed from May 2009 to October 2010 because of his membership of the LTTE;
(iii)from 2010 until 2012, the Applicant lived in temporary housing, and every two months members of the Criminal Investigation Division (‘CID’) would randomly come to his house to check on him;
(iv)in 2011, the Applicant opened a grocery store. Some soldiers would come to sell him goods and the Applicant felt he could not refuse these items;
(v)in September 2012, some soldiers came to sell him some goods. Three days later, different soldiers came to his shop and confiscated the goods as a result of which he lost 150,000 rupees;
(vi)the Applicant subsequently left for Australia. He fears persecution from the authorities due to his links to the LTTE, working for them as a member, his period of detention and failure to report and his unrelated involvement in criminal activity. The Applicant also claimed that he was Tamil from an LTTE controlled area in the north of Sri Lanka who fled the country to illegally seek asylum and this will increase his risk of harm;
(c)in respect of the facts:
(i)accepted the Applicant was a Sri Lankan Tamil from the north of Sri Lanka at [8] of the Reasons;
(ii)at [9]-[10] of the Reasons accepted, inter alia, that the Applicant had low-level involvement with LTTE from 2008 and performed small jobs for them as required. It also accepted the Applicant was subject to a period of detention from 2009 until 2010 and accepted such detention was on suspicion of his involvement with the LTTE. The Authority accepted the Applicant’s claims that life in these camps would have been difficult;
(iii)accepted that the Applicant was subject to a period of informal monitoring after his release from detention, but did not accept that he was subject to reporting requirements that had been formalised, or that any such requirements were still in place once he left the country in 2012 at [10] of the Reasons;
(iv)accepted that corrupt officers offloaded stolen army goods at his shop, they were found out, and that the army then visited him as part of the investigation into what was occurring. The Authority did not accept that this was a set up and did not accept that this incident was why the Applicant left the country at [12] of the Reasons;
(v)did not accept that the Applicant is still wanted by the army or the CID in relation to his former membership of the LTTE at [13] of the Reasons;
(d)considered whether the Applicant faced a well-founded fear of persecution because of his association with the LTTE and because he was a Tamil from a former LTTE controlled area at [15]-[23] of the Reasons. The Authority considered its factual findings and also Country Information before it (at [18]-[22]) before concluding at [23] ‘Given the improved situation in the north of the country and my finding that the applicant would no longer be of interest to the Sri Lankan authorities for any real or perceived links to the LTTE, I find the chance of the applicant facing harm as a Tamil from the north of the country with prior association with the LTTE to be remote’;
(e)considered the Applicant’s claims to fear harm from his involvement with corrupt army officers in September 2012 and the subsequent investigation at [24]-[25] of the Reasons. The Authority found it was not at all likely that the Applicant would be asked to make any identification of the individuals on his return and was not satisfied the Applicant faced a real chance of harm arising from the incident;
(f)considered the Applicant’s claims to fear harm as a failed asylum at [26] of the Reasons. The Authority considered Country Information which noted that the risk of torture or mistreatment is low and continues to reduce and that people who had been harmed were suspected of having substantial links to the LTTE. The Authority found that the Applicant did not have that kind of profile, he was a low-profile LTTE member for a short time who had performed odd jobs and had been through a rehabilitation camp. Ultimately, the Authority concluded that the Applicant did not face a real chance of harm due to being a failed asylum seeker from Australia at [26];
(g)considered the Applicant’s claims to fear harm on the basis that he was a failed asylum seeker who had departed Sri Lanka illegally at [27]–[30] of the Reasons. The Authority considered Country Information that returnees are questioned by police and where illegal departure is suspected, returnees may be charged under the Immigrants and Emigrants Act (‘IEA’). The Authority described the process that would likely apply and noted that those arrested may remain in police custody at the airport for up to 24 hours or be transported to a nearby prison. The Authority noted Country Information that ‘DFAT rates general prison conditions in Sri Lanka as not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions’ at [27]. The Authority accepted at [28] that the Applicant could be charged for having departed Sri Lanka without a passport, and that he faced a fine. At [29], the Authority found there was a real chance the Applicant would be charged and fined under the IEA and then released if he pleaded guilty. If he elected not to plead guilty to the offence under the IEA, he would either be granted bail or be asked to provide surety. The Authority therefore found there was not a real chance the Applicant faced a custodial sentence. The Authority found any detention would be for a short period while waiting to be brought before a Magistrate and that during that period, the Applicant may be subject to poor prison conditions, but that such poor prison conditions do not of themselves constitute serious harm. The Authority ultimately was not satisfied that the Applicant would face a real chance of serious harm during any brief time spent in detention on the basis of his former association with the LTTE;
(h)noted at [30] that the provisions and penalties in the IEA are of general application, and that the Applicant does not face a real chance of serious harm from the Sri Lankan authorities due to his illegal departure, travel to Australia, or for any other reason;
(i)concluded at [31] that the Applicant does not meet the requirements for the definition of a refugee and does not meet the criteria set out in section 36(2)(a) of the Migration Act 1958 (Cth) (‘Act’);
(j)considered whether the Applicant satisfied the conditions under section 36(2A) at [32]-[38] of the Reasons. The Authority relied on its previous findings to conclude that there was not a real risk of the Applicant facing significant harm because of his membership of the LTTE, his prior detention, his Tamil ethnicity, his origins from a former LTTE controlled area, his involvement in a criminal scheme, or his seeking asylum in Australia;
(k)was not satisfied that there was a real risk that the Applicant will face significant harm during the investigation process or while being held at the airport at [35] of the Reasons;
(l)accepted that if the Applicant were held for a brief period, he may be subjected to poor prison conditions during detention, but that Country Information indicated this was due to overcrowding, poor sanitation and lack of resources. The Authority was not satisfied the Applicant faced a real risk of harm during any brief time spent in detention either at the airport or prison at [36] of the Reasons; and
(m)ultimately concluded that the Applicant does not meet the criteria set out section 36(2)(aa) of the Act.
THE APPLICATION
Consideration of the Grounds of Review
There is a single Ground of Review. It is set out below:
1.The decision of the IAA is affected by jurisdictional error.
Particulars
a.In relation to the fact that he will be a returning failed asylum seeker, the Second Respondent has erred when it concludes that there is not a real chance that any element in the process of screening these returnees would involve serious harm for the purposes of s.36(2)(a).
b.In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s.36(2)(aa), the Second Respondent has not taken into consideration whether the applicant may be detained in a Sri Lankan prison, because he is a returning asylum seeker and also travelling on a temporary travel document and then should have considered if it could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words it should have evaluated the nature and gravity of that loss of liberty.
Before me, the Applicant made submissions that can best be described as going toward why he should be granted a protection visa rather than the issues set out in the Ground of Review. He spoke about the treatment he endured, what he says are the continuing threats to his life and his fear of being returned to Sri Lanka. It is understandable that the Applicant would raise these matters, which he considered to be relevant, given he was not represented. Regrettably, they do not advance his Application before me.
Prior to addressing the Ground of Review, it is necessary to set out some of the background.
The Applicant’s claims were set out in a Statutory Declaration dated 27 September 2016. In that document, the Applicant made no claim to fear harm on the basis of being a returned failed asylum seeker, or being a returned failed asylum seeker travelling on a temporary travel document. Rather, the claim at that stage was:
[20]I have been informed that it is an offence to leave Sri Lanka without authority, which I did. While I may be able to pay a fine or obtain bail, I face harm during any time I spend in jail based on my perceived association with the LTTE.
Similarly, in his written submission to the Authority dated 2 June 2017, prepared by his representative, the Applicant claimed his fear of harm on return to Sri Lanka was based upon his LTTE connections. The submission read in part:
Sri Lanka has a long history of persecuting those people it suspects of supporting the LTTE or its proclaimed aims. Reputable country information shows that serious human rights violations continue to occur in Sri Lanka, including the Sri Lankan authorities' use of torture with impunity. It cannot be doubted that the ill-treatment of Tamils with a perceived association to the LTTE is widespread and continuing. The fact that [the Applicant] is likely to be prosecuted for involvement in criminal activities means that he is less likely to be granted bail for his illegal departure charge upon return to Sri Lanka. This means that he will be held in custody or prison for a prolonged period of time and there is a large amount of country information to demonstrate that Tamils with connections to the LTTE are at a high risk of persecution whilst detained in such environments.
The Applicant’s claims to fear harm on the basis of his LTTE connections were dealt with comprehensively by the Authority. In particular:
(a)the Authority noted the main profile of people who claim to have been tortured are those that took part in political activity against the government while they were out of the country or had a real or imputed close association with the LTTE. The Authority stated that it did ‘not consider that the applicant fits the profile of a person who has taken part in political activity against the government or possesses useful information about the LTTE that might be of interest to the authorities as described in the FFT report’ (at [19]);
(b)the Authority stated at [20] that the ‘applicant has already been detained because of his LTTE association and has not identified any other activity since he left Sri Lanka which indicates that he does not fit the profile of the person would be of continuing interest to the authorities’ [sic];
(c)the Authority stated at [21] that ‘The applicant was detained because his suspected involvement with the LTTE and subject to informal monitoring on his release. He has never claimed to have been the subject to torture by the Sri Lankan authorities in spite of being held by them for 15 months. After his release from detention the applicant was able to get a loan, start grocery business and live with his family. He was not further detained. This suggests that the applicant did not have a significant profile with the Sri Lankan authorities as a result of his association with the LTTE’;
(d)the Authority stated at [23] that ‘Given the improved situation in the north of the country and my finding that the applicant would no longer be of interest to the Sri Lankan authorities for any real or perceived links to the LTTE, I find the chance of the applicant facing harm as a Tamil from the north of the country with prior association with the LTTE to be remote;
(e)the Authority having carefully evaluated the Applicant’s claims, found he was a ‘low profile’ member of the LTTE at [26];
(f)the Authority found the Applicant was not a person with a profile of having substantial links to the LTTE, of being suspected of committing serious crimes or of participating in anti-government protests while out of the country at [26]; and
(g)the Authority set out at [27] the process the Applicant was likely to encounter on return to Sri Lanka.
Further, as I have noted earlier in these reasons, the Authority went on to consider the various possibilities, including the consequences for the Applicant if he pleads guilty or not guilty to illegally departing Sri Lanka.
I have set out all of the above because it demonstrates at least the following. First, no claim was advanced by the Applicant of the type that now appears to be advanced by him in the Ground of Review. Second, the Authority dealt comprehensively with claims that the Applicant did advance.
Returning to the Ground of Review. Under particular (a), the Applicant takes issue with the finding of the Authority under section 36(2)(a) of the Act. He asserts that the Authority was in error when it concluded there is not a real chance of harm in ‘any element in the process of screening closing returnees’.
I have examined the Reasons and reasoning of the Authority above and rely upon it. The Authority dealt with the claims advanced by the Applicant at the time. It relied on Country Information. It found, inter alia, the Applicant did not fit the profile of a person having substantial links with the LTTE or being suspected of committing a serious crime or participating in anti-government protests while out of the country, with such persons being those likely to attract attention. As to the assessment of risk to the Applicant on return, the Authority carefully considered the process the Applicant would be subjected to on return, before noting at [29] of the Reasons that there is ‘no suggestion [the Applicant is] anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face a real chance of a custodial sentence’. The Authority then makes the findings I have referred to earlier concerning the Applicant not facing a serious chance of harm for any brief period of time he may spend in detention. There is nothing illogical or unreasonable about the Reasons of the Authority. The findings of the Authority were open to it. To the extent that the Applicant seeks to agitate otherwise, he seeks a merits review, which this Court is not permitted to engage in. I am unable to discern an error of the type referred to in Ground 1 (a).
Accordingly, and for the reasons set out above, particular (a) to Ground 1 is dismissed.
Under particular (b), the Applicant takes issue with the finding of the Authority under section 36(2)(aa) of the Act. He first submits that the Authority has not taken into consideration whether he may be detained in a Sri Lankan prison because he is a returning asylum seeker travelling on a temporary travel document. He also submits that the Authority should have considered any pain or suffering caused by severe overcrowding and poor and unsanitary conditions should he be remanded in custody.
A review of the material discloses that the Applicant did not make any claim to fear harm on the basis that he was returning on a temporary travel document. Nevertheless, on this issue, I observe that the Country Information before the Authority did not refer to there being a greater risk of harm to those persons who return on temporary travel documents. The Authority, in considering the Country Information, made the point that the provisions and penalties of the IEA are laws that are of general application and apply to all Sri Lankans.
As noted above, the Authority considered the prospect of the Applicant being detained in a Sri Lankan prison as a returned asylum seeker and prison conditions that existed in Sri Lanka. So much is apparent from paragraphs [26]-[30] and [34]-[37] of the Reasons of the Authority. The Authority was well aware of prison conditions in Sri Lanka, referring to them variously as ‘not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions’ (at [27]), ‘poor’ but that such conditions ‘do not of themselves constitute serious harm as defined by the Act’ (at [29]), ‘poor… due to overcrowding, poor sanitation and lack of resources’ (at [36]). Notwithstanding this, the Authority was not satisfied that the Applicant would face a real risk of significant harm during any brief time spent in detention either at the airport or in prison (at [36]). In reaching that conclusion, the Authority also stated that it was ‘not satisfied that there is an intention to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation’ (at [36]).
For the above reasons, particular (b) to Ground 1 is also not made out.
Other matters
One other matter arises for consideration. It was not raised by the Applicant, though the Minister referred to it in oral submissions. Given the Applicant is unrepresented, I propose to consider it.
The Applicant sought to introduce new information to the Authority. Relevantly, he made a new claim that the Sri Lankan authorities had attended his home on five to six occasions to make enquiries since his departure from Sri Lanka. The Authority noted that no explanation was offered by the Applicant as to why this information was not given to the Minister despite him being able to provide it earlier. The Authority then said:
While the information relates directly to the applicant’s claims for protection, I have significant concerns about the credibility of this information given it was not provided earlier and differs considerably from information already provided in the application. The applicant has not satisfied me that either s.473DD(b)i)(or (ii) is met [sic]. For completeness I have considered whether there are any exceptional circumstances to justify considering the new information in accordance with 473DD(a) and I am not satisfied there are any.
There is a question about whether the Authority in expressing ‘significant concerns about the credibility of this information’ was requiring satisfaction that the new information was true, when all that is required is that the new information is capable of being believed: see CSR16 v Minister for Immigration and Border [2018] FCA 474 at [40]-[43] (Bromberg J) (‘CSR16’); Minister for Immigration, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [42], [72]-[78].
In AJL18 v Minister for Home Affairs [2020] FCA 491 (‘AJL18’) (Mortimer J), an applicant for a protection visa had raised new claims before the Authority that could have been raised by him earlier. The Authority considered those claims to be new information and then considered the application of section 473DD of the Act to that information. The Authority noted that the new claims predated the delegate’s decision by a considerable period and stated in that context ‘I consider the failure to put forward these claims at an earlier point raises questions as to whether they are credible’. The Authority noted the failure to raise the claims earlier was ‘concerning’ and went on to state that it was not satisfied these new claims ‘are credible personal information’. In determining the matter, Mortimer J accepted the Minister’s submission that the Authority, in approaching the matter in the way that it did, did not commit an error of the type identified in CSR16. Mortimer J noted that the language used by the Authority indicated that the Authority did not consider it needed to make, and was not making, any finding as to whether or not claims were true (at [43]).
The issue in this case is similar to the issue that confronted Mortimer J in AJL18. The language used by the Authority indicates that it had not made any determination as to whether the new information is true. Rather it expressed ‘significant concerns’ about the ‘credibility of this information’ in circumstances where the information was not provided earlier, and where the information differs from what was set out in the protection visa application, that was in existence before the Authority. I am therefore satisfied that the Authority has not committed an error of the type identified in CSR16.
CONCLUSION
For the reasons set out above, the Application must be dismissed. An order will issue to that effect.
The Applicant has been entirely unsuccessful. The Minister sought costs, fixed in the sum of $6,300. I will award costs to the Minister in the sum of $6,300.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 3 April 2025
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