BQR24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 867
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQR24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 867
File number: PEG 137 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the delegate failed to take into account relevant considerations – whether the Tribunal failed to apply the correct test for degrading treatment or punishment – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 5, 5J, 36, 476, 477
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
SZVLE v Minister for Immigration and Border Protection [2017] FCA 90
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 29 May 2025 Place: Perth Applicant: In person Counsel for the First Respondent: Ms V Long-Droppert Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 137 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQR24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant raises two grounds in his application which allege that the Tribunal made a jurisdictional error by failing to take into consideration relevant information and by applying the incorrect test in assessing whether he would face degrading punishment as a result of his illegal departure from Sri Lanka.
For the reasons explained below, I have found that the applicant has not established that the Tribunal made a jurisdictional error. I therefore dismiss the application for judicial review.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant’s arrival in Australia and previous assessments of protection obligations owed to the applicant
The applicant entered Australia in May 2010.
In August 2010 the applicant requested a Refugee Status Assessment (RSA). On 29 September 2010 a RSA officer found that the applicant did not meet the definition of a refugee set out in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Convention).
On 28 October 2010 the applicant made a request for Independent Merits Review of the RSA decision. The Independent Merits Reviewer (IMR) issued a report on 4 July 2011 finding that the applicant did not meet the criterion for a protection visa in s 36(2) of the Migration Act and recommending that the applicant not be recognised as a person to whom Australia owed protection obligations.
On 16 April 2012 the Department began Post Review Protection Claim (PRPC) and Unique and Exceptional Circumstances (UEC) assessments which had a negative outcome on 8 August 2012. On 1 July 2014 the Federal Circuit Court found that the PRPC had not been made according to law.
On 5 February 2015 the Department wrote to the applicant, via his lawyer, and advised that a new assessment of his protections claims would be undertaken as part of a new International Treaties Obligations Assessment (ITOA). The ITOA was finalised on 15 May 2015, with the decision-maker finding that Australia does not have non-refoulement obligations to the applicant. The applicant sought judicial review of the ITOA in the Federal Circuit Court on 29 May 2015. By consent, the Federal Circuit Court declared that the ITOA was affected by jurisdictional error on 23 February 2016.
The protection visa application the subject of this judicial review proceeding
The applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. The applicant applied for a Safe Haven Enterprise visa (protection visa) on 20 September 2018.
On 19 February 2019 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 21 February 2019.
Review by the Tribunal
On 4 March 2019 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 14 July 2023 the Tribunal invited the applicant to a hearing scheduled on 2 August 2023. The applicant’s representative advised the Tribunal on 18 July 2023 that she had not heard from the applicant.
The applicant did not appear at the hearing on 2 August 2023.
On 17 August 2023 the Tribunal wrote to the applicant and requested that he contact the Tribunal before 31 August 2023 or his matter would be dismissed. The applicant provided a completed change of contact details form on that same day.
On 12 September 2023 the Tribunal invited the applicant to a hearing scheduled on 6 December 2023. This invitation was sent to the applicant via his authorised recipient, but on 24 November 2023 the applicant’s representative and authorised recipient advised the Tribunal that she no longer represented the applicant. The applicant provided a completed change of details form removing his representative on 28 November 2023.
On 29 November 2023 the Tribunal provided the applicant a copy of the hearing invitation sent on 12 September 2023.
On 30 November 2023 the applicant’s former representative advised the Tribunal that the applicant had appointed a new migration agent to assist him and requested an adjournment of the hearing scheduled on 6 December 2023. On 1 December 2023 the Tribunal refused the adjournment request.
The applicant requested an adjournment and provided a medical certificate on 4 December 2023. The Tribunal refused the adjournment request on 5 December 2023.
The applicant attended the hearing on 6 December 2023 but the hearing was unable to proceed because of difficulties with interpretation. The Tribunal rescheduled the hearing for 22 January 2024.
On 11 December 2023 the applicant appointed a new representative. The applicant’s representative subsequently provided further evidence in support of the applicant’s claims.
The applicant attended the hearing on 22 January 2024 with his representative and with the assistance of a Tamil interpreter. After the hearing, the Tribunal gave the applicant until 6 February 2024 to provide any further information.
The applicant’s representative provided a medical certificate and advised that they were waiting on further evidence on 30 January 2024.
On 6 March 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal accepted that the applicant was a Tamil from the Jaffna District.
The Tribunal recorded that the applicant said he had a well-founded fear of persecution in the form of significant physical harassment as an ethnic Tamil, a member of the particular social group sympathiser/worker for the Liberation Tigers of Tamil Eelam (LTTE) and failed asylum seeker returning from Australia.
Association with the LTTE
The Tribunal accepted the applicant’s evidence that he had worked in some tombs for LTTE soldiers and that he attracted the adverse interest of the authorities in that capacity.
The Tribunal recorded the applicant’s claim that he was stopped and detained by the army twice in 2006. The Tribunal accepted that the applicant was released when the Grama Sevaka assured the army that the applicant would be in his control. The Tribunal also accepted that there was a risk associated with the applicant continuing to work as a driver for an employer whose personal endeavour was to build shrines to fallen LTTE soldiers, and that the applicant elected to depart Sri Lanka rather than risk continuing to work in that capacity. The Tribunal was not persuaded that there was any ongoing interest in the applicant after his release from three days detention he experienced in 2006.
The Tribunal found that the applicant’s loose association with the LTTE some 18 years ago did not materially increase the chance of risk to him as a Tamil person in Sri Lanka in the present, adding that there was little evidence to suggest that his association with the LTTE was documented in any way or recorded on any database that would be readily accessible this long after his departure from Sri Lanka.
Sur place activities
The Tribunal was not satisfied that the applicant had been involved in any Tamil associations in Australia for a purpose other than strengthening his claims for protection. The Tribunal recorded that it was not satisfied that the applicant’s involvement in Tamil associations in Australia had been documented in any way that is likely to come to the attention of the Sri Lankan authorities.
Scar
The Tribunal observed that the applicant is missing a part of one finger. The Tribunal recorded that the applicant claimed that this occurred in a shell explosion, but that there was no expert or medical evidence before it as to the cause of this injury. The Tribunal accepted that it has the appearance of an injury that could possibly have been incurred in action or in guerrilla warfare.
The Tribunal accepted that the scar puts the applicant in the particular social group ‘Tamils who have injuries to their hands that were or might have been incurred in a shell-explosion’. The Tribunal found that it is a scar that it might attract the interest of the authorities if it came to their attention in a context that invested it with potential significance.
Relatives who were LTTE members
The Tribunal recorded the applicant’s evidence that he had a cousin who was killed for being an LTTE member more than 30 years ago but noted that the applicant had not suggested that his family had any recent or high-profile involvement with the LTTE. The Tribunal did not accept that this level of historic familial connection with a member of the LTTE who lacked a high profile increases the risk to the applicant.
Disability
The Tribunal recorded that there was evidence before it that the applicant may be suffering from depression. However, the Tribunal was unable to be satisfied that the applicant had a diagnosed long-term mental illness that could compromise an immutable characteristic, as opposed to a transient mood disorder.
Illegal departure from Sri Lanka
The Tribunal accepted that the applicant departed Sri Lanka by boat in 2006 and travelled to India, arriving in Tamil Nadu and remaining there for around four years. However, the Tribunal did not accept that the applicant travelled directly to Australia from India.
The Tribunal found that the applicant returned to Sri Lanka by boat in about July or August 2009 and remained there until his departure for Australia in 2010. The Tribunal accepted that the applicant left Sri Lanka again in 2010 by boat and that his departure was an offence under the Sri Lankan Immigrants and Emigrants Act. However, the Tribunal was not satisfied that the penalty associated with the offence would be anything other than a reasonable punitive measure for breaching a law of general protection.
Returnee from Australia
Based on country information, the Tribunal did not accept that being a returnee from Australia gave rise to a real chance of serious harm to the applicant.
Cumulative effect of the claims and assessment of the applicant’s claims under the refugee criterion
The Tribunal found that the applicant’s return to Sri Lanka in 2009 spoke strongly against the applicant having a fear of persecution in Sri Lanka. The Tribunal was not satisfied that the applicant experienced any harm on his return to Sri Lanka.
The Tribunal noted that there have subsequently been two relevant changes to the applicant’s circumstances. The first of these was that the applicant would be returning to Sri Lanka as a failed asylum seeker on a temporary travel document. The Tribunal referred to country information published by the Department of Foreign Affairs and Trade that suggested the applicant would be questioned by the Criminal Investigation Department (CID) on arrival, detained and charged with breaching the Immigrants and Emigrants Act. The Tribunal found that the essential and significant reason for that risk to the applicant was his failure to comply with a law of general application. The second subsequent change was the applicant’s sur place activities with Tamil organisations in Australia. The Tribunal did not have regard to the risk associated with this changed circumstance because it was not persuaded that the applicant engaged in sur place activities for any reason other than the strengthening of his protection visa application.
The Tribunal considered whether the applicant faced a real chance of serious harm based on the cumulative effect of the applicant being a Tamil person who is a member of the particular social group ‘Tamils who have injuries to their hands that were or might have been incurred in a shell-explosion’, who will come to the attention of the authorities due to his illegal departure from Sri Lanka, and who has some very mild historic associations with the LTTE. The Tribunal was not persuaded that the cumulative effect of these circumstances gave rise to a real chance of serious harm, and did not consider that the risk of harm was elevated by the applicant’s depression or anxiety. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act.
Complementary protection
The Tribunal accepted that the applicant would come to the attention of the CID on his return to Sri Lanka due to his illegal departure, may be held for a period and charged with breaching the Immigrants and Emigrants Act. The Tribunal did not consider that the applicant would be tortured for a confession, noting that his offence would be proved by the applicant’s immigration records. The Tribunal did not consider that the applicant would be imprisoned.
The Tribunal was not satisfied that the applicant’s loose past association with the LTTE would come to the attention of the authorities on his return to Sri Lanka. The Tribunal also considered that the applicant would be unlikely to provide details of his association with Tamil organisations in Australia. The Tribunal did not consider that the applicant’s missing finger would enliven a real risk that the applicant would be tortured for information about the LTTE, and it did not accept that the applicant’s depression or anxiety was of sufficient severity to constitute significant harm.
Based on the evidence before it, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had any obligations under s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 8 April 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises the following two grounds in his application:
1. The delegate failed to take into account relevant factors in my case.
2.The Tribunal fell into jurisdictional error in failing to apply the correct test for degrading punishment in relation to me breaching the Sri Lankan Immigrants and Emigrants Act in that I illegally departed Sri Lanka and would be questioned and arrested at the airport on my arrival, prosecuted, imprisoned in unsanitary conditions, and even tortured.
On 4 October 2024 a Registrar of this Court made an Order which, among other things, required the applicant to file and serve, at least 28 days before the hearing, written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he seeks to rely. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions 14 days before the hearing, as required by the Order.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 18 October 2024;
(b)the affidavit filed by the applicant with his judicial review application; and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 28 May 2025.
The applicant also provided two documents after the hearing, which I address below.
The applicant’s request for a lawyer
At the hearing the applicant asked the Court to find him a lawyer, explaining that he was not well-educated and had taken some steps to find a lawyer himself without success, and he feels very scared. The Court declined the applicant’s request. As I explained to the applicant at the hearing, there is no right to a lawyer in migration proceedings: see SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40]; ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25].
The Court has provided information to the applicant to attempt to mitigate any perceived disadvantage he may face as a self-represented litigant. This included providing, in the email advising the parties of the listing for the hearing, links to multilingual information sheets and videos available on the Court’s website about migration hearings, although the applicant indicated at the hearing that he had not looked at this information. The Court also made oral explanations to the applicant at the hearing about the conduct of the hearing, the role of the Court, and the need for the applicant to establish jurisdictional error in the Tribunal decision. After making the explanations, the Court stood the matter down briefly to ensure that the applicant had an opportunity to consider what he wished to say in his oral submissions.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicant’s submissions at the hearing
When the applicant was invited to make oral submissions at the hearing, he initially indicated that he did not wish to make submissions until after the Minister’s submissions.
I invited the applicant to at least identify the relevant matters that he believes the Tribunal overlooked, so the Minister had an opportunity to properly understand his case before making submissions. In response, the applicant submitted that he came as a refugee, seeking asylum, but he does not even understand the description of a refugee. He does not wish to be dishonest and does not have experience facing interviews. He submitted that if I asked him about past happenings, his mind goes back to things that happened in Sri Lanka and he gets confused and feels a lot of fear and anxiety.
Having heard these submissions, I allowed the applicant to wait until after Counsel for the Minister made her oral submissions before requiring the applicant to make his oral submissions. I also reminded the applicant that the Court’s focus is on the Tribunal decision and what the Tribunal did, and indicated that I would not be asking the applicant questions about his claims for protection.
After Counsel for the Minister made her submissions, including providing a detailed summary of the Minister’s written submissions to ensure the applicant had every opportunity to understand those submissions, the applicant made further oral submissions.
The applicant submitted that:
(a)The Tribunal and the Department rejected his claims stating that he was not someone who would face harm. But if that was not the case, why would he go by boat to India? It is only because he had issues that he had to discretely go to India, rather than get a passport as a person would normally do.
(b)In his country, they do not behave or act like they do here. They do not act based on their word.
(c)The Tribunal said that his involvement with the Tamil movement was because he wanted to strengthen his claims, but this is not the case. He was involved for cultural reasons and to be patriotic. To this day, he is still in favour of the LTTE and still supports what they did. He did not make any claim that because of his association with Tamil congress he would face harm on return. He just said that he had association with Tamil groups. He does not even know how to prove that he is a refugee.
(d)The real issue is that if he is returned to Sri Lanka, he does not know what will happen to him. He is thinking about this 24/7 and is very afraid. It is not correct to say that he is not a refugee and if that were the case, it would need to be said that everyone who came on a boat is not a refugee.
(e)This is all he is able to say. He is not an educated person, and does not know what other arguments to make in support of his application. Whatever he has said, he has said in midst of grief and sadness.
Counsel for the Minister did not wish to say anything further in response to the matters raised for the first time in the applicant’s reply submissions.
The applicant’s oral submissions express general disagreement with the Tribunal decision and invite the Court to consider the merits of his protection claims. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa. As explained above, the applicant’s disagreement with the Tribunal decision does not, of itself, establish jurisdictional error. The applicant’s oral submissions do not establish jurisdictional error in the Tribunal decision.
Ground 1
By ground 1, the applicant asserts that the delegate failed to consider relevant factors. As set out in the Minister’s submissions, the Court does not have jurisdiction to review the delegate’s decision. This is because the delegate’s decision is a primary decision within the meaning of s 476(4)(a) of the Migration Act (as it applied at the time of the application), and the Court does not have jurisdiction to review primary decisions: see s 476(2)(a) of the Migration Act.
At the hearing, I explained to the applicant that I would treat the ground as an assertion that the Tribunal failed to consider relevant factors. The applicant has not identified what relevant factors the Tribunal failed to consider.
It is well-established that the Tribunal is required to consider the claims expressly articulated by an applicant and their component integers, as well as any claims that are not clearly articulated, but which clearly emerge from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60]-[61]. It is also well-established that the Tribunal is not required to expressly refer to every item of evidence provided by an applicant or to make findings on that evidence: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [67]-[68]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
The Tribunal in the present case summarised the claims and evidence advanced by the applicant on the various opportunities he had since his arrival in Australia to articulate his claims for protection (see [31]-[45] of the Tribunal’s reasons). The Tribunal also identified at [59] of its reasons the various country information reports that the applicant provided in support of his claims and confirmed that it had read each of them. The Tribunal then proceeded to consider and make findings on the applicant’s claims for protection, referring to the country information where appropriate. The choice of country information and the weight to be given to it was a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13].
I accept the Minister’s submission that the applicant has not established that the Tribunal failed to consider a particular claim or evidence. I also accept the Minister’s submission that the Tribunal considered the claims and evidence advanced by the applicant against both the refugee and complementary protection criteria.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal did not apply the correct test for ‘degrading punishment’ in relation to his illegal departure from Sri Lanka, claiming that he would be questioned and arrested upon his return to Sri Lanka, imprisoned in unsanitary conditions and tortured.
The applicant did not address this ground in his submissions. The Minister addressed the ground in written and oral submissions and I have had regard to the Minister’s submissions.
The reference to ‘degrading treatment’ in the applicant’s ground draws attention to the Tribunal’s consideration of the complementary protection criterion.
The term ‘degrading treatment or punishment’ is defined in s 5(1) of the Migration Act to mean:
… an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The Tribunal in its complementary protection assessment considered the meaning of ‘degrading treatment or punishment’ at [122]-[123] of its reasons, where it said:
122.The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZGTM v MIBP (2017) 262 CLR 362 at [26]-[27] and [114].
123. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
In finding that the applicant did not face a real risk of significant harm for breaching the Immigrants and Emigrants Act, the Tribunal said at [124] (footnote omitted):
The DFAT Report suggests that torture is still used by the Sri Lanka police to extract confessions, and that it is still common in prisons. The Tribunal finds that the applicant will come to the attention of the CID on his return to Sri Lanka, may be held for a period, and charged with breaching the immigration legislation in Sri Lanka. The fact of his offence is proved by the immigration records, and there is nothing before the Tribunal to suggest that he is likely to be tortured for a confession; such a confession is wholly unnecessary to the prosecution of illegally leaving the country. On the country information cited above, there is not a real risk that the applicant will be imprisoned; the penalty that is typically imposed for this offence is a fine.
The reference to country information is a reference to the information that the Tribunal considered at [93]-[106] of its reasons in considering the applicant’s claims based on his illegal departure in the context of its consideration of whether the applicant met the refugee criterion.
Having regard to the definition of ‘degrading treatment or punishment’ in s 5(1) of the Migration Act and the High Court’s reasoning in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 about the meaning of intention, I am satisfied that the Tribunal correctly understood the term ‘degrading treatment or punishment’ in [122]-[123] of its reasons.
The applicant has not identified anything in the Tribunal’s reasons to suggest that the Tribunal then misapplied the term ‘degrading treatment or punishment’.
As submitted by the Minister, the applicant’s contention in the ground that he would be questioned and arrested upon his return to Sri Lanka, imprisoned in unsanitary conditions and tortured appears to be a request for the Court to engage in impermissible merits review. The Tribunal clearly considered the applicant’s claims and accepted that the applicant would be questioned upon his return to Sri Lanka and charged with breaching the immigration legislation, but was not satisfied that the applicant faced a real risk of imprisonment or torture. These findings were open to the Tribunal on the evidence before it, including the country information it relied on. Based on these findings, it was also open to the Tribunal to conclude that the applicant did not engage Australia’s complementary protection obligations.
Ground 2 is not established.
Additional issue raised by the Court
At the hearing, I asked Counsel for the Minister to address whether the Tribunal had considered the applicant’s sur place claims in considering the complementary protection criterion.
The Tribunal addressed the applicant’s claim in relation to his activities with the Australian Tamil Congress at [76]-[80] of its reasons, finding at [80] that it was not satisfied that the applicant had been involved in any Tamil associations in Australia for a purpose other than strengthening his claims for protection. At [113] of its reasons, in addressing whether the applicant met the refugee criterion, the Tribunal explained that it could not have regard to the risk associated with the applicant’s activities with Tamil organisations in Australia, because it was not persuaded that the applicant engaged in these activities for any reason other than the strengthening of his protection visa application.
This approach of the Tribunal was appropriate in considering the refugee criterion because of s 5J(6) of the Migration Act. This subsection provides:
In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
There is no equivalent of s 5J(6) that applies in relation to the complementary protection criterion in s 36(2)(aa) of the Migration Act, which is the reason for the Court’s question to the Minister’s Counsel.
Counsel for the Minister submitted that the Tribunal did consider, for the purposes of its complementary protection assessment, the applicant’s claim to have engaged in activities with Tamil organisations in Australia.
In advancing this submission, Counsel for the Minister drew to the Court’s attention the final sentence of [80] of the Tribunal’s reasons, where the Tribunal said:
The Tribunal is in any event not satisfied that the applicant’s involvement has been documented in any way that is likely to come to the attention of the Sri Lankan authorities.
Counsel for the Minister also referred to [125] of the Tribunal’s reasons, which appears under the heading ‘Complementary protection’, where the Tribunal said (emphasis added):
The Tribunal is not satisfied that the applicant’s loose past association with the LTTE will come to the attention of the authorities on his return to Sri Lanka. He has a demonstrated track record of misleading an authority at an entry interview for his perceived benefit, and the Tribunal finds that there is no real risk that he will volunteer that he drove trucks for a builder who was constructing tombs for LTTE heroes, even if asked about past associate with the LTTE on entry into Sri Lanka. He is equally unlikely to provide details of his association with Tamil organisations in Australia.
I am satisfied, having regard to the findings at [80] and [125], that the Tribunal considered the applicant’s claim to have engaged in activities with a Tamil organisation in Australia for the purposes of assessing his complementary protection claims. It is implicit in the Tribunal’s finding that the applicant’s activities would not come to the attention of the authorities that the Tribunal was not satisfied that the applicant would face a real risk of significant harm from the authorities. I thank the Minister’s Counsel for addressing this issue.
Additional documents provided by the applicant after the hearing
Following the hearing in this matter, the applicant sent emails to my chambers annexing two documents. No explanation was offered for providing these documents and the applicant did not have leave to provide any additional documents.
In circumstances where the applicant is self-represented, the parties were advised that I would address the documents in my reasons.
The first document provided by the applicant was an undated letter directed to the Minister from a Justice of the Peace, advancing a submission as to why the applicant should be afforded protection in Australia. This document addresses the merits of whether the applicant meets the criteria for the grant of a protection visa, which the Court does not have the power to consider. The letter does not assert any jurisdictional error in the Tribunal decision and does not establish jurisdictional error.
The second document is a letter from a psychologist dated 18 March 2025, which confirms that the applicant has attended counselling sessions since December 2024 and presented with symptoms associated with anxiety and depression. The applicant’s purpose in providing this document is not apparent to the Court.
If the applicant provided the document to challenge the Tribunal’s findings in relation to the applicant’s anxiety and depression and its impact, it cannot establish jurisdictional error. The document post dates the Tribunal decision and was not before the Tribunal. The Tribunal is not able to consider evidence that was not before it.
If the applicant has provided the document to challenge my refusal to find a lawyer to assist him, the document does not cause me to change the decision I made at the hearing. While the letter confirms that the applicant reported symptoms that affect his ability to function in his day to day living and gives risk to symptoms associated with depression such as low mood and affect, concentration difficulties, memory loss and hopelessness, it does not suggest that he is incapable of understanding the nature of the proceeding, participating in the hearing or representing himself at the hearing.
Neither of the additional documents provided by the applicant after the hearing establish jurisdictional error in the Tribunal decision or cause me to revisit the conduct of the hearing.
CONCLUSION
Given my findings above that the applicant has not established that the Tribunal made any jurisdictional error, it follows that the judicial review application must be dismissed.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2025
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