AWR18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 414
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWR18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 414
File number(s): MLG 485 of 2018 Judgment of: JUDGE FORBES Date of judgment: 27 March 2025 Catchwords: MIGRATION – Protection visa – judicial review of decision of Immigration Assessment Authority not to grant visa as applicant was not of adverse interest to authorities – whether Authority failed to assess claims cumulatively – whether Authority failed to exercise discretion to consider new information – no jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 36(2), 473CB, 473DD, 473DE Cases cited: BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 20 March 2025 Date of hearing: 20 March 2025 Place: Melbourne Applicant: In person Counsel for the Respondents: Mr O’Shannessy; Mills Oakley ORDERS
MLG 485 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWR18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
27 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to Item 10 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the “Administrative Review Tribunal” be substituted for “Immigration Assessment Authority” as the Second Respondent.
2.The Application be dismissed.
3.The Applicant pay the First Respondents costs fixed in the sum of $7,000.00.
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 FORBES
INTRODUCTION
On 12 February 2018, the Immigration Assessment Authority (Authority or IAA) affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV). By an application dated 26 February 2018 the applicant seeks judicial review of the Authority’s decision.
The applicant seeks to impugn the decision of the Authority on four grounds. In essence, the grounds contend that the Authority failed to discharge its statutory task by making a finding that was not supported by the evidence, not properly considering and assessing his claims for protection under the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (Act) or the complementary protection criteria in s 36(2)(aa) of the Act, and failing to exercise its discretion to consider new information.
I have considered each of the grounds for judicial review and for the reasons set out below I am not satisfied that the decision of the Authority is affected by jurisdictional error.
BACKGROUND
The applicant arrived in Australia by boat on 10 October 2012 as an unauthorised maritime arrival. He is a citizen of and formerly resided in Sri Lanka[1].
[1] Court book (CB) 128
In an Irregular Maritime Arrival Entry Interview conducted shortly after his arrival the applicant claimed to fear harm because he did not consider Sri Lanka to be safe and because young men, similar to his age, were being targeted by paramilitary groups. He said he chose Australia as a destination because he heard Australia was giving asylum to refugees. In an Enhanced Screening interview on 27 November 2012 the applicant claimed he was seeking asylum because, among other things, he was targeted by the Sri Lankan Army, the Criminal Investigation Department and the Tamil Makkal Viduthalai Pulikal (TMVP).
On 8 December 2015, after the s 46A bar was lifted, the applicant was invited to apply for a temporary protection visa or a SHEV under the fast track assessment process. On 16 August 2016, the applicant applied for the SHEV with the assistance of Refugee Legal[2].
[2] CB 36
In support of his application the applicant provided a statutory declaration dated 16 August 2016 which set out his claims for protection. In summary, those claims were that[3]:
[3] CB 79-81
(1)he is a single male of Tamil ethnicity and Hindu faith;
(2)he has no family or extended family who were involved with the Tamil Tigers (Liberation Tigers of Tamil Eelam or LTTE);
(3)living in Sri Lanka was “impossible” as he was constantly fearful of being targeted and persecuted by the army, due to being a young male Tamil;
(4)in 2006 he and other young male Tamils were subjected to curfews by the army – were not allowed to be outside after 6pm;
(5)from February 2006 to November 2008, he lived and worked in Iraq as a labourer in a US military camp, to avoid the situation he faced at home;
(6)between 2008 and 2009, he was arrested three times by the army on suspicion of links to the LTTE. He was taken to a temple along with other young men and interrogated about whether he was involved in the LTTE or any terrorist group. Though he witnessed others being beaten, he was not physically harmed himself. He was released each time;
(7)from December 2010 to November 2011, he returned to Iraq to escape persecution in Sri Lanka, working at a different US military camp;
(8)he fled Sri Lanka by boat in September 2012 as the situation had not changed in Sri Lanka;
(9)he cannot return to Sri Lanka because he fears that he will be seriously harmed on account of his Tamil ethnicity. If he returns, he will live in fear of being targeted and also believes that he will not be able to find a job;
(10)Singhalese are trying to impose their culture onto Tamils;
(11)he fears return as departing illegally as he did is a crime, and he will be treated cruelly by the police and army in detention;
(12)he fears return as he maybe be perceived as wealthy after having lived in Australia, which makes him a target for authorities;
(13)he does not think he can mentally adapt or “even continue living” if he returned to Sri Lanka;
(14)he cannot obtain protection from Sri Lankan authorities because they are the ones he fears;
(15)he cannot relocate within Sri Lanka because the situation is same all over the country
On 5 January 2017, the applicant was invited to attend an interview with a delegate scheduled on 25 January 2017. He attended the interview with the assistance of a Tamil interpreter.
On 19 May 2017, a delegate of the Minister refused the SHEV application[4]. The delegate refused the visa after not being satisfied that the applicant was of interest to Sri Lankan authorities and that he would not face a real chance of serious harm or a real risk of significant harm on return.
[4] CB 128-138
Referral to the Immigration Assessment Authority
On 24 May 2017, the Authority notified the applicant that the delegate’s decision had been referred to it for review under Part 7AA of the Act. Correspondence from the Authority informed the applicant that the Authority had been provided with all documents the then Department of Immigration and Border Protection (Department) considered relevant to his case, including any material that the applicant had provided prior to the delegate’s decision.
The applicant was informed that the Authority would make its decision on the basis of the information received from the Department, unless it decided to consider new information, which it would only do in limited circumstances. The circumstances in which the Authority might consider new information were explained in a Practice Direction which accompanied notification of the referral.
The Practice Direction also invited the applicant, for the purposes of the review, to provide a written submission on (1) why he disagreed with the decision of the Department and (2) any claim or matter that he presented to the Department that was overlooked. Any such submission was required to be provided within 21 days of the referral.
On 21 June 2017, the applicant emailed the Authority stating the following:
I received letter from IAA. I don’t have further details or documents regarding my case.
Do I want to contact lowyer (sic)?
( Recently my father passed away so I totally forgot this IAA letter, I’m writing now)
The Authority responded on 22 June 2017, advising the applicant that appointing a lawyer is not compulsory, but that he may seek advice and assistance if he wished. The Authority provided the applicant with a list of providers of migrant and asylum seekers support services.
The Authority’s decision records that no further information was obtained or received by them. There is no evidence of the applicant having provided further documentation or written submissions to the Authority after the referral. The applicant does not contend, in these judicial review proceedings, that additional information was provided to the Authority
The Authority conducted its review without inviting the applicant to an oral hearing.
The Authority’s decision
On 12 February 2018, the Authority notified the applicant of its decision to affirm the delegate’s decision to refuse to grant the SHEV.
I have carefully read the Authority’s decision and I am satisfied that it has been accurately summarised in the Minister’s written Outline of Submissions at [9]-[19] as follows:
9. The Authority recorded it did not obtain nor receive any further information (CB 160, [4]).
10. The Authority accepted that the applicant was a Tamil from Batticaloa, Eastern Province, which was not under LTTE control and that neither he nor his family had any connection with the LTTE (CB 161, [8]-[9]); in 2006, curfew-type restrictions were imposed in his area, which restricted night time travel and activities, including festivals (CB 162, [10]); and that the applicant was briefly taken by the authorities for questioning on two occasions as part of general round ups, and that he witnessed others being beaten during these round ups. However, given he was released with no consequences on each occasion, the Authority found the authorities had not imputed him with any LTTE profile (CB 162, [10]).
11. The Authority accepted the applicant had obtained employment on American military bases in Iraq in 2007 and 2010, and that he travelled to India in 2012. Based on his own evidence that he did not experience any problems passing through the airport an obtaining his passport, the Authority found he was not of adverse interest to the authorities at the time (CB 162-163, [11]).
12. The Authority noted the applicant claimed during his enhanced screening interview that he had been targeted by the TMVP and stated during his arrival interview to being aware of young men being targeted by paramilitary groups. However, he did not make any such claim in his SHEV application or during his SHEV interview, and considered the applicant had abandoned this claim. Therefore, the Authority did not accept the applicant was targeted by the TMVP or any paramilitary group (CB 163, [13]).
13. The Authority considered the applicant's claim that as a young, unmarried male from a former LTTE area he would be imputed as LTTE. However, it had regard to country information that indicated merely being a Tamil did not in itself warrant international protection and neither did being from an area formerly controlled by the LTTE. Given the Authority had found the applicant would not be perceived to have LTTE links and that he had travelled to and from Sri Lanka without problems, it was not satisfied he would be imputed with any LTTE or separatist profile by the authorities (CB 163-164, [14]-[15]).
14. The Authority considered the applicant's claims that Tamils continue to be discriminated against by the Sinhalese Buddhist majority. However, based on country information and the applicant's profile, the Authority did not accept he faced a real chance of harm based on his history or as a male Tamil Hindu from Batticaloa (CB 164-165, [16]-[18]).
15. The Authority considered the applicant's claim that on being returned from Australia he would be perceived to be wealthy. However, on the country information, it was not satisfied there was a real chance he of harm because he returned from Australia, which may be perceived as a wealthy western country (CB 165, [19]).
16. While the Authority accepted the applicant would return as a failed asylum seeker from Australia who departed Sri Lanka illegally, it did not accept there was a real chance of serious harm as a result of any routine processing at the airport upon return to Sri Lanka, including payment of a fine and/or any brief detention (CB 166-167, [20]-[26]).
17. The Authority was not satisfied the applicant faced a real chance of persecution and concluded that the applicant did not satisfy paragraph 36(2)(a) of the Act (CB 167, [27]-[28]).
18. Based on the same factual findings, the Authority was not satisfied that the applicant faced a real risk of significant harm if returned to Sri Lanka (CB 168, [31]). The Authority also found that the treatment the applicant would experience on return to Sri Lanka did not amount to significant harm (CB 168, [32]).
19. The Authority concluded that the applicant did not satisfy paragraph 36(2)(aa) of the Act (CB 168, [34]).
Application for judicial review
In his application for judicial review filed on 26 February 2018, the applicant asserts the following four grounds of application (verbatim):
1. The Immigration Assessment Authority's finding that the applicant was not targeted by the TMVP or any paramilitary groups was not supported by evidence.
2. The Immigration Assessment Authority fell into jurisdictional error by not assessing the applicant's claims cumulatively being a Young Tamil of Hindu faith from the East of Sri Lanka with a perceived political opinion and/or connection to the LTTE.
3. The Immigration Assessment Authority fell into jurisdictional error by not assessing the applicant's integer claim of being a member of a particular social group - A wealthy Sri Lankan Tamil returnee who departed illegally.
4. The Immigration Assessment Authority has not complied with section 473DD & 473 DE of the Migration Act 1958 when finding that there are no exceptional circumstances to justify considering new information.
On 17 September 2024, the Court made orders in anticipation of the matter being listed for final hearing, including that the applicant file and serve any amended application with proper particulars, any affidavit evidence, and written submissions on or before 17 October 2024. No documents have been filed by the applicant in accordance with those orders.
Prior to the judicial review hearing on 20 March 2025, the Minister filed and served a court book and an Outline of Submissions. The Minister also filed an affidavit of Anthony Robert Gardner dated 13 March 2025 which deposed to correspondence between the Minister’s solicitors and the applicant and confirmed service of the court book and the Minister’s written Outline of Submissions.
JUDICIAL REVIEW HEARING
At the judicial review hearing on 20 March 2025, the applicant appeared self represented. He was assisted by a Tamil interpreter. The Minister was represented by a solicitor, Mr O’Shannessy.
The applicant confirmed he had received the court book, and that he had been provided with the Minister’s Outline of Submissions.
Before inviting the applicant to address the Court, I provided him with an explanation about the Court’s role in a judicial review proceeding and provided guidance about the procedure the Court would adopt during the hearing. I explained to the applicant that the Court cannot review the merits of the Authority’s decision or grant the visa that he seeks. I informed him that the role of the Court was restricted to determining whether the Authority made a material error in arriving at its decision. I emphasised to him that he should endeavour to explain why the Authority made an error in its decision-making and what he believes the Authority did wrong, suggesting that he should use the grounds in his application for guidance. For his assistance, I carefully read out each of the grounds in his application and invited him to address each of them. My explanation was interpreted and, based on the applicant’s responses, I am confident he properly comprehended the scope and purpose of the hearing.
Applicant’s submissions
The applicant did not directly address or develop the grounds in his application.
In his oral submissions the applicant argued that the Authority was wrong to find that he would not be in danger on his return. He said he came to Australia in 2012 due to unrest in his country. He said that he still cannot go back. The applicant said that he had lived in Australia for 13 years and did not have a future back in Sri Lanka. During that time he had lost his father and his uncle. The applicant said that he had been a good citizen in Australia, had a job and paid his tax.
I reminded the applicant that my task was to determine whether the Authority had properly considered and determined his case. In response to my question “where did the IAA go wrong?”, the applicant said “in my opinion the IAA did not consider my reasons properly”. The applicant added that he faced lots of problems before he came to Australia in 2012. He said everybody who came on the boat said the same thing but the IAA rejected all the claims.
In a brief reply submission, the applicant “denied” that he did not have a legitimate fear of the TMVP or the LTTE. He said he unfortunately did not have any evidence to prove that fear other than his own experiences. The applicant said that he had travelled overseas during the war to protect himself and he had tried to keep away from the trouble. He submitted that it would be unfair to be sent back to Sri Lanka after being in Australia for 13 years because it would be too hard re-establish a life there.
MINISTER’S SUBMISSIONS AND CONSIDERATION
As the applicant did not directly address the grounds of review, it is most convenient to set out the Minister’s submissions and my consideration in relation to each.
Ground 1
By this ground, the applicant asserts that the Authority’s finding that he was not targeted by the TMVP or any paramilitary groups was not supported by evidence.
At [13] of its reasons, the Authority stated:
“The applicant stated in his Enhanced Screening interview that he had been targeted by the TMVP and referred in the Arrival interview to being aware of young men like himself being targeted by paramilitary groups. The applicant did not make any such claim in his SHEV application and provided no evidence in support of any such claim at SHEV interview and I do not consider that he has pursued this claim. I do not accept that the applicant was targeted by the TMVP or any paramilitary groups”
The Minister noted that although there was a reference to the TMVP at the screening interview, the claim was not made in the SHEV application and there is no evidence that it was raised in an interview with the delegate. The claim of being targeted by the TMVP was not identified nor considered by the delegate. Moreover, despite being afforded the opportunity to do so, the applicant did not provide the Authority with any written submissions complaining that the delegate had failed to consider his claims properly or had overlooked that specific claim.
The Minister submits, and I agree, that the Authority was entitled to consider that the applicant had abandoned this claim and to find that he was not targeted by the TMVP or other paramilitary group. The Authority is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa[5].
[5] BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324 at [51] per Bromberg J
Apart from a bare statement made in the Enhanced Screening interview, there was no evidence in the referred materials or otherwise before the Authority of the applicant being targeted as claimed. While the applicant sought to vaguely raise this issue again in his oral reply submission at the judicial review hearing, he conceded that he did not have any evidence.
The Authority did not have to identify rebutting evidence before rejecting this claim[6]. It was for the applicant to advance this claim in his SHEV application and to provide evidence in support of it. In this case, in the absence of evidence, it was open to the Authority to find that the applicant was not pressing this claim for protection and that he was not targeted by the TMVP.
[6] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) FCR 437 at 451
Ground 1 must be dismissed.
Ground 2
By ground 2, the applicant asserts that Authority fell into jurisdictional error by not assessing three of his claims cumulatively, those being:
(a)that he is a young Tamil of Hindu faith;
(b)that he is from the East of Sri Lanka; and
(c)that he has a perceived political opinion and/or connection to the LTTE.
The Minister concedes that the Authority did not conduct a cumulative assessment of those three claims. However, the Minister says this is entirely unsurprising given the Authority’s finding at [15] that the applicant did not have any political opinion and/or connection to the LTTE[7]. Having rejected that claim, the Minister submits that the Authority was not obliged to include the claim of political opinion and/or connection to the LTTE in its cumulative assessment of the applicant’s claims[8].
[7] CB 163-164
[8] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]
The Authority did accept the applicant’s remaining claims that he was a young Tamil of Hindu faith and that he lived in the East of Sri Lanka. Those claims were considered cumulatively by the Authority as evidenced by [27] of its reasons:
“For the reasons given above, I am not satisfied that the applicant will be viewed with any adverse interest upon return to Sri Lanka either as a Hindu Tamil male from Eastern Province or because of returning as a failed asylum seeker from a perceived wealthy Western country. Nor am I satisfied that he will be perceived to have been or to now be a threat to national security. I am not satisfied that the applicant faces a real chance of persecution in Sri Lanka for these reasons or any combination of them”. (Emphasis added)
I accept the Minister’s submission that paragraph [27] of the Authority’s reasons is a complete answer to ground 2. This ground must be dismissed.
Ground 3
Ground 3 asserts that the Authority fell into jurisdictional error by not assessing the applicant's integer claim of being a member of a particular social group - A wealthy Sri Lankan Tamil returnee who departed illegally.
In his oral submissions, the Minister’s representative submitted that the pleaded ground was ambiguous and capable of two constructions, namely
(a)that the Authority failed to consider a claim that the applicant was a wealthy Sri Lankan Tamil prior to his illegal departure who would be persecuted on return because of his membership of that particular social group; or
(b)that the Authority failed to consider a claim that the applicant would be persecuted on return because he would be perceived to have accumulated wealth by reason of having sought asylum in Australia.
As to the first of the two constructions, the Minister submitted that there is no evidence of such claim having been made. I agree with the Minister’s submission that there was therefore no requirement for the Authority to have considered the claim.
In my view the claim advanced by the applicant was of the second kind. For example, in the Advanced Screening interview[9] , in response to the question “What do you think may happen if you go back to your country?” the applicant said:
“I fear the police that they will ask me for money on return as they will assume I have money since I went to Australia”
[9] CB 20
Furthermore, at paragraph [18] of the statutory declaration produced in support of his SHEV application[10], the applicant stated:
“… I fear that if I return to Sri Lanka after having been in Australia, a Western country, for such a long time the authorities will think that I have a lot of money. I fear that they will demand that I give them money or prove that I do not have money by giving them my bank details. If I do not provide this information, I fear the authorities will harm me or beat me.”
[10] CB 81
It is clear that the delegate acknowledged this claim[11] and dealt with it[12]. Subsequent to the delegate’s decision, the applicant did not make any submission to the Authority contesting the delegates finding or suggesting that the delegate misunderstood the claim. Save for his bare assertion of fearing harm on the basis that he would be perceived as a wealthy person, the applicant did not provide any evidence to support the claim.
[11] CB 129, last bullet point
[12] CB 133
The Authority squarely considered and addressed the applicants claim at [19] and [27] of its reasons. For example, at [19] the Authority stated:
I have considered the applicant’s claim that being returned from Australia, a perceived ‘wealthy western country,’ will give rise to presumptions about the applicant’s wealth and expose him to risk of extortion by the authorities. The ITJP has reported on people released from detention after payment of ransom in 2015 and I note from this report that most of those people had an LTTE profile. There is no country information before me at all that credibly infers that returnees from Australia are viewed as being themselves particularly wealthy, or at risk of extortion in Sri Lanka. On the country information referred I am not satisfied that this is any more than a very remote risk for the applicant. I am not satisfied that there is a real chance of harm to the applicant arising because he is returned to Sri Lanka from Australia which may be perceived to be a wealthy western country.
Ground 3 is misconceived and must be dismissed.
Ground 4
Ground 4 asserts that the Authority had not complied with ss 473DD and 473DE of the Act in finding that there are no exceptional circumstances to justify considering new information.
The Minister submits, and I accept, that this ground is also misconceived and should be dismissed.
In the particular circumstances of this case, sections 473DD and 473DE of the Act were not engaged. The applicant did not advance any “new information” after the delegates decision. At [3]-[4] of its reasons[13] the Authority stated that it had regard to the material given by the Secretary under s 473CB and confirmed that “[n]o further information has been obtained or received”. The applicant does not contend otherwise.
[13] CB 160
In his oral submissions to the Court, the applicant submitted that the Authority failed to consider his claims properly. I do not accept that submission. Fairly read, the reasons reveal that the Authority gave close and attentive consideration to each of the applicant’s claims by reference to the referred materials.
DISPOSITION
The applicant’s oral submissions did not advance his pleaded grounds. The applicant has not identified jurisdictional error. As I explained to the applicant at the commencement of the review hearing, the Court cannot grant the visa he seeks nor can the Court engage in a merits review of the Authority’s decision.
For the reasons set out in the foregoing paragraphs, the application for judicial review must be dismissed.
The Minister seeks an order that the applicant pay the first respondent’s costs fixed in the sum of $7,000.00. I note that sum is below the relevant scale for a final hearing and I consider it appropriate to make the order.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 27 March 2025
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