CMJ18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 224

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CMJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 224

File number(s):

SYG 1358 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

26 February 2025

Catchwords:

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (Class XE) (subclass 790) – whether the Authority mischaracterised the applicant’s claim – grounds of judicial review have no merit – consideration of country information – application dismissed with costs

Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) s 5H, 5J, 36, 46A, 473CB, 473EA

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALR 630; 256 FCR 593; [2003] FCAFC 184

BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3

Minister for Immigration v MZYTS (2013) 230 FCR431; [2013] FCAFC 114

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M1-2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Division:

Division 2 General Federal Law

Number of paragraphs:

47

Date of hearing:

17 January 2025

Place:

Parramatta

Counsel for the Applicant:

Mr Karp

Solicitor for the Applicant:

Shamili Kugathas ( Australian Presence Legal)

Solicitor for the Respondents:

Ms Pieri ( MinterEllison)

Solicitor for the Second Respondent:

Submitting appearance,save as to costs

ORDERS

SYG 1358 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CMJ18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,600.00.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”) dated 19 April 2018, affirming the decision of a delegate of the Minister to not grant the applicant a Safe Haven Enterprise (Class XE) 87 (subclass 790) Visa (SHEV).

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

   BACKGROUND

3. The applicant is a citizen of Sri Lanka. He arrived in Australia on 14 November 2012 as an unauthorised maritime arrival.

4. The Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (“the Act”) and allowed the applicant to make a valid application for a specified visa.

5. The applicant applied for the SHEV on 27 January 2016. The delegate refused to grant the applicant a SHEV on 21 February 2018.

6. The Minister referred the decision to the Authority on 27 February 2018 as it constituted a fast-track reviewable decision.

7. The applicant applied to this court for judicial review on 15 May 2018.

8. The matter was listed for a call over before a Registrar of this Court on 27 June 2024. The applicant did not appear, and the matter was subsequently dismissed.

9. On 27 June 2024, the Court reinstated the applicant’s application.

   IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

10. The applicant’s claims for protection are summarised at [12] of the Authority decision. They are as follows:

    (a)His family is involved with the LTTE, with the father being a member who supplied information and two siblings and uncles being previous members;

    (b)One of the siblings, the brother, was involved with the LTTE intelligence wing for several years and was taken in for questioning for several days. Authorities found weapons in the family home. The brother has now been abducted by the Criminal Investigation Department and has not since been returned;

    (c)The applicant physically resembles his brother;

    (d)Upon efforts to locate the brother, the applicant’s family were harassed by authorities;

    (e)The applicant has been stopped, falsely accused of various crimes and/or physically assaulted by the Criminal Investigation Department on multiple occasions; and

    (f)As the applicant unlawfully sought asylum in Australia, he fears that upon return to Sri Lanka, he will be seriously harmed or killed by authorities who associate him with the LTTE.

11. The Authority had regard to material given by the Secretary under s 473CB of the Act.

12. The Authority received submissions and further information from the applicant’s representative. As to submissions received that requested the Authority to obtain a copy of an unpublished decision of the Administrative Appeals Tribunal, as it was then, the Authority found that obtaining this decision would not be necessary or required.

13. For the reasons it gave at [6]-[11], the Authority had regard to, but ultimately did not find there was exceptional circumstances to constitute the following information as new information; an extract of a decision record that relates to another individual, a submission arguing that the applicant faces a “risk of being processed en masse”, two media reports from Reuters News Agency and an undated report from Eyewitness News that mostly concerned Buddhist-Muslim violence in Kandy, medical records that concern a family member which post-date the delegate’s decision and a letter from the applicant’s mother with an English translation which post-date the delegate’s decision.

14. The Authority did consider various reports on the situation in Sri Lanka that were before the delegate.

15. On the evidence of the applicant, the Authority accepted and made the following factual findings:

    (a)The applicant had relatives who were members of the LTTE, and his father provided low-level assistance to the LTTE as claimed. The applicant’s Sister ‘J’ had low-level involvement with the movement in 2004. The applicant’s ‘Brother J’ was involved in the LTTE for three to four years from 2004 and worked in the intelligence wing. [14-[16].

    (b)The applicant’s brother disappeared in 2008, after being abducted by the authorities and paramilitaries. The Authority noted that enforced disappearances occurred in this manner in Sri Lanka at that time.

    (c)The applicant’s family attempted to locate his brother and lodged a police complaint. The Authority accepted that the applicant and his family were threatened and harassed by the Sri Lankan authorities for trying to find the brother and attempting to lodge a complaint [17]-[22]. They eventually lodged a complaint in 2013.

    (d)In light of information reflecting that former LTTE combatants or cadres, supporters and persons with family linked to such people may be in need of international refugee protection and the accepted status of the applicant’s family involvement in the LTTE, it was accepted that the applicant was stopped, questioned and assaulted by the authorities on three occasions in 2012 [25]. This was also as a result of reports of widespread monitoring and harassment of Tamils under the Rajapaksa government [24].

    (e)The Authority did not find that the applicant received adverse attention from authorities as a result of the brother’s activities, noting that the applicant indicated that he did not experience any adverse attention until more than three years after the brother’s disappearance [25].

    (f)The Authority was not satisfied that the applicant left Sri Lanka because he was of any adverse interest to authorities or paramilitary groups [27].

    (g)Due to the applicant leaving Sri Lanka by unofficial means, the Authority accepted that the Sri Lankan government may have assumed that the applicant sought asylum from Sri Lanka in Australia and that he would be identified as a returning asylum seeker if he were to return to Sri Lanka [28].

    (h)The applicant has attended Martyrs Day events in Australia.  

16. In making a refugee assessment in accordance with s 5H(1) of the Act and establishing whether the applicant held a well-founded fear of persecution under s 5J of the Act, the Authority considered various pieces of country information to assess the applicant’s claims.

17. At [36] the Authority accepted that the applicant was harassed and subject to threats after attempting to locate his brother however it did not accept that this resulted in the applicant being of any continuing interest to the CID, paramilitary groups or the Sri Lankan authorities at the time of his departure.

18. In regard to the applicant’s involvement in Martyrs’ Day events in Australia, the Authority was not satisfied that the applicant would be perceived as having had an active role in post-conflict separatist activities or any involvement significant enough to bring him to the attention of the authorities [37].

19. The Authority did not accept that there was a chance the applicant experiencing harm for reasons of his ethnicity, gender, origin from or residence in a former LTTE controlled area of the East of Sri Lanka. It did not consider there to be a chance of harm on account of the applicant’s family members being low level members of the LTTE or because of his brother’s past LTTE activities and the family attempting to find his brother following the disappearance in 2008.

20. It was accepted that the applicant being a returning asylum seeker would not expose him to a real chance of harm [40]. It is likely that, as a returnee using a temporary travel document, the applicant would be questioned upon return, his family may be contacted, and the checks may be undertaken with police in his home area. The applicant did not face a real chance of harm as a returning Tamil asylum seeker taking this family background and these circumstance into account [41].

21. The applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a). Further, upon undertaking a complementary protection assessment, the applicant also did not meet s 36(2)(aa). The Authority affirmed the decision to not grant him a SHEV.

    GROUNDS OF JUDICIAL REVIEW

22. The grounds of judicial review are contained in a Further Amended Application lodged on 3 February 2025, where the applicant sought leave of the Court to rely upon at the hearing. The Minister’s legal representative did not oppose the applicant’s reliance on the further amended application and had regard to the grounds in the preparation of their written submissions. The Court granted leave to rely upon the further amended grounds. The further amended grounds are as follows (less particulars):

    1.The IAA failed to consider, in the way mandated by law, paragraph [33] of what it referred to as the 2017 DFAT report (“DFAT Country Information Report – Sri Lanka, 24 January 2017).

    2.The IAA failed to consider the actual claim overtly or implicitly made by the applicant, being that he and his family were in danger as a result of agitating to find the whereabouts of the applicant’s brother who had disappeared

    3.Not pressed at hearing.

    THE APPLICANT’S SUBMISSIONS

23. Ground one contends that the Authority failed to consider information put to it in the 2017 DFAT Country Information Report (DFAT Report) in which the applicant’s relevant profile and links to the LTTE was squarely within the group of persons identified as potentially needing international protection. The particulars refer to the United Nations High Commission for Refugees 2012 guidelines regarding the categorisation of people in danger from the Sri Lankan Authorities which are referred to in the DFAT report.

24. The applicant specifically points to paragraph 3.32 and 3.33 of the DFAT Report which is before the Court in an Affidavit of Shamili Kugathas of 3 February 2025 (Exhibit 2). This refers to persons with family links to persons with profiles including former LTTE members in the ‘intelligence’ branch. Brother J was accepted by the Authority as being a member of the LTTE and working in the intelligence branch the LTTE at [16]

25. The Authority also referred to more recent sources of country information, being a UK Home Office Report, which post-dated the 2017 DFAT report by less than two months. The applicant submits that s 473EA of the Act, in effect at the time of the Authority decision, read together with s 25D of the Acts Interpretation Act 1901 (Cth) require the Authority to refer to evidence or material on which the decision was based. This supports a conclusion that the Authority failed to consider information in the way required by authorities, citing Plaintiff M1-2021 v Minister for Home Affairs (2022) 275 CLR 582 (“Plaintiff M-1/2021”) at [24]. The information contained in the 2017 DFAT Report is submitted to be ‘highly pertinent’ information that the Authority ignored and subsequently constitutes a jurisdictional error: (see: Minister for Immigration v MZYTS (2013) 230 FCR431; Plaintiff M-1/2021 at [27]).

26. Ground two argues that the Authority’s finding at [36] of its decision record that “country information does not indicate that family members of disappeared person[s] are currently at risk of harm in Sri Lanka” fails to address the claim actually made, constituting jurisdictional error: ( see: Applicant WAEE v Minister for Immigration (2003) 75 ALR 630 (“Applicant WAEE”) at [46]-[47]). The applicant contends it is instead the fact that the applicant and his family were agitating or making complaints to authorities about the brother’s disappearance and seeking to hold others accountable that is the substance of his claim. The Authority record suggests that it found that the authorities were responsible. Further to this ground, it is submitted that the applicant had a profile of interest in 2012 and on this basis the Authority did not provide a reason for the dissipation of that profile.

    THE FIRST RESPONDENT’S SUBMISSIONS

27. As to ground one, the first respondent identifies that the Authority referred to the UNHCR guidelines at [33] and noted that the UNHCR’s assessment predated the election of President Sirisena in January 2015. President Sirisena took a more proactive approach to human rights and reconciliation than previous government holders. The Authority noted that it was still referred to in the DFAT Report, but it had taken a variety of more recent sources into account.

28. The Authority referred to the UK Home Office Report, where it is highlighted that the report showed that persons who had past connections to the LTTE did not face risk of harm unless they were perceived to have had a significant role in relation to post conflict Tamil Separatism. The Authority did not accept that the applicant was of adverse interest to authorities as, whilst he had familial links to the LTTE, the involvement of his family, who were LTTE members, was only low-level.

29. The country information chosen and the weight to be attributed to it are matters for the decision maker: (see: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ). The Authority placed more weight on the UK Home Office Report despite also having access to the UNHCR guidelines set out in the DFAT Report. The Authority explained why less weight had been placed on the guidelines. Therefore, the Authority’s assessment of the country information was open to it for the reasons it gave.

30. Ground two is a contention that the Authority failed to consider that the applicant and his family were in danger for trying to find out where his brother had disappeared to. The particulars contend that the Authority considered a different question, that being whether the families of people who had disappeared were at risk.

31. The applicant claim was summarised at [12] of the Authority decision and among other things and the Authority accepted multiple factual findings at [22] of the decision, including that the family had been harassed and threatened by Sri Lankan authorities. The Authority ultimately found that although this had occurred, it was not satisfied that this resulted in the applicant being of continuing adverse interest to the CID, paramilitary groups or Sri Lankan authorities, for reasons provided at [36] of the decision.

32. The applicant contends that the Authority only noted that country information did not indicate that family members of disappeared persons were currently at risk of harm as a sole basis for the Authority’s finding that the applicant would not face harm on his claim. This argues that this was only one of the pieces of information considered by the Authority. It is clear from the Authority’s findings that the Authority did not ask the wrong question.

33. The Authority’ findings at [22] where reference was made to country information from 2014 and August 2015 regarding harassment and intimidation of family members of disappeared persons and the findings at [36] are not inconsistent. At [22] the Authority assessed and referred to country information, which is not in relation to the applicant’s claim at ground two. The assessment was not of whether the applicant would face harm on his return as a result of having made complaints about his brother’s disappearance and having faced harassment. The country information at [22] referred to whether it accepted the claim that the applicant lodged a police complaint regarding his brother going missing and that he had problems as a result of that before he left Sri Lanka.

    CONSIDERATION

34. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

35. In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:

    It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

36. The above was expanded upon in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 where at [47] the Court said as follows:

    The inference the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings a greater generality or because there was a factual premise upon which a contention arrests that has been rejected.  Where, however, there was an issue raised by the evidence advanced behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegates decision, a failure to deal with that in the published reasons may raise a strong inference that has been overlooked.

1. The Authority decision record runs to some 56 paragraphs over 15 pages, not including annexures. It is a comprehensive decision with reference being made to multiple sources of country information. At multiple times, the Authority refers to the claim of fear by the applicant are based on, amongst other things, his family’s involvement with the LTTE (see [2], [12] [14] [27]).

   Ground One

2. Ground one is a complaint that the Authority failed to consider at [33] a 2017 DFAT report, as mandated by law, in that it failed to consider the categorisation of people in danger by reference to a 2012 UNHCR guideline. That guideline at paragraph 3.32 stated that “a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection’. This included ‘former LTTE cadres… [who] were employed by the LTTE in functions within administration or intelligence…’ and ‘persons with family links… or otherwise closely related to persons within the above profiles’.

3. The Authority accepted the applicant himself was not involved in the LTTE but his family members were, including Brother J who was employed within the intelligence branch of the LTTE and had disappeared.  Notwithstanding this, the Authority concluded that the applicant’s relatives who were LTTE members had only low-level involvement. The Authority concluded that the applicant was not of any adverse interest to Sri Lankan authorities for the reasons of his familial association with members of the LTTE at the time of his departure in 2012.

4. The Court does not accept that the Authority somehow mischaracterised the applicant’s claims or failed to appreciate that in 2012, he may have been at risk due to his familial connections. However, the Authority’s decision was in 2018. By this time, there have been significant changes in Sri Lanka which are set out in full at [33]. This includes that the Authority had taken into account a variety of more recent sources of country information when considering the situation that the applicant may be faced upon return. These are footnoted at the bottom of page 10 of the decision record.

5. The complaint in ground one is that there was no explicit consideration of the applicant’s risk ‘as a family member of a person who is engaged in the intelligence branch of the LTTE’. The Court does not accept the assertion that there is a gap in the reasoning of the Authority in this regard. There is a specific reference in [33] to the 2012 UNHCR guidelines together with an acknowledgement that they are nevertheless referenced in the 2017 DFAT country report. However, the Authority goes on to state it has taken into account a variety of more recent sources of country information when considering the situation faced by the applicant upon return. It was consideration of the totality of the information that led the Authority to conclude that the applicant was not at risk. The Court is satisfied this finding was open to the Authority based on the evidence before it and for the reasons it gave.

6. The Court is satisfied that the claim by the applicant that he was in fear because of his familial connections was identified, considered and rejected by the Authority based on an assessment of the totality of the country information referred to. To require a specific reference, as submitted by the applicant and a rejection the applicant was not at risk under the 2012 guidelines is an attempt to read the Authority’s reasons ‘with an eye finally attuned to error’. Ground one has no merit.

   Ground Two

7. Ground two is a complaint that the Authority failed to consider whether or not the applicant was at risk on the basis that he was a member of a family that had made a complaint about a missing person. It is submitted that at [36] of its reasons, the Authority addressed a different question, that being whether or not the families of persons who had disappeared were at risk. In so doing, the Authority asked itself the wrong question. The Court does not accept this proposition.

8. The Authority specifically set out at [36] that it accepted the applicant was harassed and subject to threats after trying to locate his brother following his disappearance. The Authority then found that it was not satisfied that this resulted in the applicant being of any continuing interest to Sri Lankan authorities. Complaint is made as to the next sentence which states “country information before me does not indicate that family members of disappeared persons are currently at risk of harm in Sri Lanka”. The Authority goes on within its discussion to point to a number of measures which have been taken within Sri Lanka to address the disappearances of citizens who may have been perceived to be opposed to the government. At the conclusion of paragraph 36, the Authority states “I did not identify recent reports in the information before me of family members of disappeared persons being targeted or harassed”.

9. Again, this complaint seeks to read the Authority’s reasons with an ‘eye finely attuned to error’. The Authority was clearly aware of and acknowledged that a complaint had been made finally to police in 2013 by the applicant’s family regarding the disappearance of Brother J. The Court notes however this was after the applicant had left Sri Lanka. The Authority accepted at [36] that the applicant had been harassed and subjected to threats after trying to locate his brother prior to his departure.  This implicitly includes the making of complaints to authorities. Further, the Authority explicitly noted at [22] reports that indicated individuals trying to locate a disappeared persons had come to the adverse attention of authorities. Notwithstanding this, the Authority found for the reasons it set out, that the applicant was not at risk for this reason upon return.

10. The Court does not accept that the Authority’s review miscarried such as to raise jurisdictional error on the basis that there was not a specific reference within [36] to the fact that the applicant’s family had made complaints. When the decision record is read as a whole, the Court is satisfied the matter was raised, considered and rejected by the Authority for the reasons it gave. The Court is satisfied that the findings at [22] are not inconsistent with the findings at [36]. Ground two has no merit

11. As the grounds of judicial review have no merit, the application must be dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       26 February 2025