BTI18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 596

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BTI18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 596

File number(s):	SYG 984 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	20 March 2025
Catchwords:	MIGRATION – protection visa –application for review of Immigration Assessment Authority decision – where no jurisdictional error is established – application dismissed with costs
Legislation:	Migration Act 1958 (Cth): s 473
Division:	Division 2 General Federal Law
Number of paragraphs:	48
Date of hearing:	20 March 2025
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Ms Kelly of Sparke Helmore Lawyers
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 984 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BTI18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	20 MARCH 2025

THE COURT ORDERS THAT:

1.The Application filed on 10 April 2018 is dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application fixed in the sum of $6,800.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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

(Ex tempore)

JUDGE VASTA

1. On 20 March 2018, the Immigration Assessment Authority (“IAA”) affirmed a decision not to grant the applicant, BTI18, a protection visa.  On 10 April 2018, the applicant asked this Court to review that decision.

2. This matter has had a bit of an unfortunate history.  The applicant is a citizen of Sri Lanka, who arrived in Australia by boat on 10 October 2012.  He was able to make his application for the visa on 7 February 2016.  He was interviewed by the delegate on 13 September 2016.  He provided three different post-interview submissions on 27 September 2016, 3 October 2016 and 10 October 2016.  On 27 October 2016, the delegate refused to grant the application for the visa. 

3. Because the applicant was an unauthorised maritime arrival, his application, once refused, was referred directly to the Immigration Assessment Authority.  The IAA affirmed the decision under review on 31 May 2017.  The applicant then asked this Court to review that decision.

4. This Court, on 15 December 2017, found that there was jurisdictional error that infected the IAA decision and remitted the matter back to a differently constituted IAA. 

5. On 23 February 2018, the IAA wrote to the applicant and told him that, since the date of the decision, there had been some updated country information that was relevant.  The IAA asked the applicant whether he wished to make any comment on this new information.  On 10 March 2018, the applicant responded, saying that the country information was out of date, because there had been another election since that time.  The IAA then began its deliberations on the applicant’s application. 

6. On 20 March 2018, the IAA affirmed the decision to refuse to grant the visa.

7. As I earlier noted, on 10 April 2018, the applicant asked this Court to review that decision.  The matter came before the registrar on 3 May 2018.  The usual orders for filing of material were made, and the matter was adjourned to a call-over on 13 November 2018. 

8. On 9 November, the order that the matter go to a call-over was vacated, and new orders for the filing of material were made.  The matter was set down for final hearing on 25 February 2019 before Her Honour Judge Baird. 

9. That hearing did not take place, but instead, on 20 August 2019, the Registrar ordered that the matter be stood over for a call-over before Judge Baird on a date to be advised, which would be not before 1 September 2020. 

10. Nothing happened with the matter until it was then taken up upon the creation of the National Migration Docket.  On 19 September 2024, the registrar made new orders as to the filing of material. 

11. Earlier this year, the matter was transferred into my docket to be heard at 2.15pm, Brisbane time on Thursday, 20 March 2025.

12. This means that the applicant has waited nearly seven years for this Court to finalise his application for review.  That is an inordinate amount of time for the applicant to have been waiting for this Court to get its act into gear.  This is contrasted with the first review that the applicant made, which was completed less than six months after he filed that application.  To go from having an application heard within six months of filing, to now having to wait seven years from the date of filing for the next matter to be heard is unacceptable.

13. On behalf of the Court, I apologise to Mr BTI18 for this delay.  This is part of the reason why I have given these reasons ex tempore this afternoon, because it behoved the Court to now dispose of this matter as quickly as it was able to do whilst still giving the matter its due regard. 

14. The background to the matter is that the applicant was born in the Eastern Province of Sri Lanka and he and his family were Tamil Hindus.  During the conflict, the army controlled the territory where the applicant and his family lived.  The applicant claimed that, in 1997, the army tortured his father because his father’s brother was supporting the Liberation Tigers of Tamil Eelam (“LTTE”).  He said that two years later, the army shot his father’s brother who was managing medicine for the LTTE.  The applicant said that his family was kept under surveillance and questioned frequently after this event.

15. The applicant said that the army asked his family about the LTTE, but also the LTTE was coming to his family and asking them about the army.  The applicant said that he did some labouring jobs for the LTTE but didn’t do any training or weapons handling.  He said that the army saw him doing this labouring work. 

16. He said that, in 2003, two people that he believed were from the Karuna group, in effect, kidnapped him for five weeks.  He said that his mother found out where he was and was able to get him released, and he went to stay in another village after that.  He said that he was working by putting up posters for the Karuna group’s political wing and he did “labouring” jobs and drove vehicles and dug bunkers.

17. When the Karuna group split from the LTTE, he was afraid for his life, and so he went to Qatar to work in 2007.  He said that he came back to Sri Lanka in 2010, but he was detained and questioned at the airport.  He said that the CID told him that they had evidence that he was an LTTE member.  He was allowed to leave, and he went to his home, but he said he was detained and interrogated on three further occasions.  He left Sri Lanka again and went back to Qatar.  He returned to Sri Lanka in 2011.

18. He said, in 2012, he began supporting the Tamil National Alliance (“TNA”) party as a volunteer.  He said people from other parties told him that he should not help the TNA and help them instead.  He said that, in September 2012, he attended a celebration for TNA because they had an election win.  He said that the army and the police came to the celebration and were taking videos and photos of persons there.  He said, at one stage, he was carrying the TNA candidate on his shoulders, when he was pushed by a man.

19. When he pushed that man back, that man showed him a CID identity card.  He said, later that night, the TNA candidate’s son was kidnapped.  The applicant said that, about three days later, some armed men came to his house and woke up his father and asked his father about him.  When the applicant appeared, these men told the applicant that he helped the other party in the election, and that they will see him now wherever he goes.

20. The applicant then appeared, and these men told the applicant that because he had helped the other party win the election, they would be watching him wherever he goes. The applicant claimed that they told his father that they would kill the applicant. 

21. The applicant fled to his uncle’s house about 16 kilometres away and stayed there for about a week.  While he was with his uncle, men returned to the family home and asked about the applicant again.  The applicant said that his father told him to go back to Qatar, but the applicant knew that he would not be able to get through the airport.  He said this is why he left Sri Lanka illegally and came to Australia. 

22. He said that he has supported, and continues to support, the LTTE while he has been in Australia.  He said that he is active on social media and has made pro-Tamil and anti-government posts.

23. He said that his father worked as a surveyor for the Sri Lankan government and now has a government pension.

24. The IAA looked very thoroughly at all of the material before them to assess the applicant’s claims. 

25. The IAA looked at his claim regarding LTTE support and contacts.  At paragraph 36, the IAA said that they were satisfied that the applicant was not of any adverse interest to the Sri Lankan authorities when he left Sri Lanka to come to Australia.  As far as his political activities were concerned, the IAA was not satisfied that his activity was such that it would come to the adverse attention of the Sri Lankan authorities. 

26. The IAA looked at the psychological report that had been given to them, and was satisfied that the applicant did not face a real chance of harm arising from any medical condition.

27. The IAA looked at quite a deal of country information to assess what the situation was for young male Tamils in Sri Lanka.  The IAA said that generally Tamils with no profile, or only a low-level profile, are not subjected to systemic targeting by the authorities. 

28. The IAA was not satisfied that the applicant would suffer any harm because of his religion. 

29. The IAA was satisfied that the situation for Tamils in Sri Lanka had significantly improved and was continuing to do so. 

30. The IAA looked at the applicant’s situation if he returned to Sri Lanka as a returned asylum seeker who departed illegally.  The IAA found that there would not be any risk of serious harm to the applicant because of those matters.

31. At paragraph 77, the IAA said that they were satisfied that the applicant “does not face a real chance of harm” because of all of the features of which he had claimed.

32. The IAA was satisfied that the applicant did not:

    face a real chance of harm because of:  any real or imputed association, including family association, with the LTTE; scarring; any involvement in commemoration activities; his detention by suspected Karuna group persons in 2003;any association with or support to the TNA; his Facebook profile and social media activities;  his or his family’s status as wealthy or perceived wealthy Tamils; any reason associated with his mental health; being a Tamil male and a Hindu from the east; or being a returned asylum seeker. 

33. The IAA concluded then that the applicant did not meet the definition of refugee.

34. The IAA then looked at whether the applicant fulfilled the requirement of complementary protection.  Having looked thoroughly at the evidence, the IAA concluded that the applicant did not meet those requirements. 

35. Having come to those conclusions about the refugee provisions and the complementary protection provisions, the IAA affirmed the decision not to give the applicant a protection visa. 

36. There was only one ground of application, and that was as follows:-

    The authority made a jurisdictional error by being legally unreasonable in failing to consider or exercise its power under s 473 of the Migration Act 1958 (Cth) (“the Act”) to invite comment from the applicant on new information.

37. In the particulars given of this ground, it was noted that the IAA used new country information.  The particulars go on to say that it was appropriate for the IAA to look at this new country information.  The particulars then go on to say that the authority significantly relied upon that new country information in making its decision.  The applicant wrote that, in these circumstances, the authority ought to have considered exercising, or actually exercised, the power to invite comment upon the country information. 

38. The ground presupposes that the IAA did not make any invitation to the applicant to comment. However, not only do the reasons of the IAA indicate that, at paragraph 15, the IAA did invite the applicant to comment on that information, but at CB 299, a letter has been reproduced that was sent to the applicant on 23 February 2018.  The letter clearly states that:

    Since the date of the decision there has been updated country information published that refers to current conditions and the security situation in Sri Lanka. You are invited to comment on the following new information, which may lead the IAA to conclude that you do not face a real chance or real risk of significant harm in Sri Lanka.

39. The rest of the letter then summarises the relevant parts of the DFAT report.  The letter also summarises important aspects of two other country information reports.  The letter said that the information was relevant.  The letter said that this new information indicates both that the security and general situation in Sri Lanka has improved, but also that the situation for Tamils and Tamils from the east of Sri Lanka has significantly improved. 

40. The IAA asked the applicant to make his comments. 

41. On 10 March 2018, the applicant replied, through his agent.

42. This reply is reproduced at CB 303.  It relevantly states:

    The review applicant instructs that the country information is out of date due to the re-election of Rajapaksa.

43. It is therefore incongruous that the applicant complains that he should have been given an opportunity to comment when, in fact, he was given the opportunity to comment, and he did, in fact, comment.  There is no merit in the ground of application.

44. The applicant appeared before me today unrepresented but assisted by an interpreter.  He told me that all the things that he had said to the IAA and to the delegate were true. 

45. He complained that it had taken a long time for this case to come up.  I do note that that was a justifiable complaint, and I have already apologised for this situation. 

46. He said that he could not get anyone to take his case for him. 

47. After explaining to the applicant what a jurisdictional error was, as best I could, I asked him if he could identify any error.  He said that he did not know if they made an error, and he could only know whether they had done it right or wrong if a lawyer told him.

48. I have conducted my own independent analysis of the reasons of the IAA, and I have not been able to find any jurisdictional error.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       13 May 2025