CQE19 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 419

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CQE19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 419   

File number(s): SYG 1657 of 2019
Judgment of: JUDGE KAUR-BAINS
Date of judgment: 27 March 2025
Catchwords:  MIGRATION – judicial review – protection visa – whether the Tribunal’s state of non-satisfaction that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka because of her status as a Tamil widow was formed without probative evidence – whether an error in the process by which a state of mind is reached – no jurisdictional error established  
Legislation:  Migration Act 1958 (Cth), ss 476, 477
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568

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

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349
Division: Division 2 General Federal Law
Number of paragraphs: 47
Date of hearing: 25 February 2025
Place: Sydney
Counsel for the Applicants: Mr A Aleksov
Solicitor for the Applicants: Carina Ford Immigration Lawyers
Counsel for the Respondents: Mr M Cleary
Solicitor for the Respondents: Mills Oakley

ORDERS

SYG 1657 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CQE19

First Applicant

CQF19

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KAUR-BAINS

DATE OF ORDER:

27 MARCH 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 Kaur-Bains

  1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal dated 11 June 2019. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicants protection visas (visas). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.

  2. The issue that arises for determination is whether the Tribunal, at [265] of the reasons, reached a state of non-satisfaction as to the real chance of the applicant suffering serious or significant harm on return to Sri Lanka without probative evidence. For the reasons set out…

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AGLC
CQE19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 419
Case
[2025] FedCFamC2G 419
Decision Date

CaseChat Overview and Summary

The applicant, a Tamil widow, sought judicial review of a decision by the Tribunal that she did not face a real chance of suffering serious or significant harm on return to Sri Lanka due to her status as a widow and her past association with the Liberation Tigers of Tamil Eelam (LTTE). The case was heard in the Federal Circuit Court of Australia, where the applicant argued that the Tribunal's decision was based on insufficient evidence and contained errors in the process by which the Tribunal reached its state of mind.

The legal issues that the court had to address were whether the Tribunal's state of non-satisfaction was formed without probative evidence and whether there was an error in the process by which a state of mind was reached. The applicant argued that the Tribunal failed to properly consider the evidence and the relevant guidelines and that its findings were unreasonable and not based on the evidence presented.

The court found that the Tribunal had considered the relevant evidence and guidelines and had reached its decision based on the evidence presented. The court held that the Tribunal's decision was not based on insufficient evidence and that there was no error in the process by which the Tribunal reached its state of mind. The court found that the Tribunal had considered the applicant's past association with the LTTE and the risks associated with being a widow in Sri Lanka, but had determined that these factors did not apply to the applicant's specific circumstances. The court held that the Tribunal's decision was reasonable and based on the evidence presented.

The final orders of the court were that the application for judicial review be dismissed, that the decision of the Tribunal be affirmed, and that the applicant pay the respondent's costs of the application. The court found that the Tribunal's decision was not flawed and that the applicant's application for judicial review should be dismissed. The court also found that the applicant should pay the respondent's costs of the application, as the application was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

To understand the applicant’s argument, it is helpful to set out the relevant parts of the Tribunal’s reasons.TRIBUNAL DECISION The Tribunal noted the applicant’s far-ranging claims at [23] and [24] of its reasons and at [26] of its reasons found the applicant was not an honest or credible witness. These credibility findings are not challenged by the applicant in this judicial review application. Although the Tribunal accepted the applicant worked with the LTTE from 2002 to 2004, the Tribunal did not accept her account of the nature of her work with the group (at [36] of the reasons). The Tribunal found it likely the applicant worked in one of the LTTE’s Civilian Auxiliary Units, receiving basic military training, but engaging in non-combat activities (at [44] of the reasons). The Tribunal accepted the applicant’s husband worked for the LTTE for several years (at [49] of the reasons). The Tribunal did not accept that after the applicant’s husband’s death she was of special interest due to her and her husband’s past involvement with the LTTE or the Karuna group or otherwise (at [197] of the reasons). The Tribunal did not accept the applicant ‘was sexually assaulted by members of the Sri Lankan security [forces] or by men who befriended and then assaulted her’ (at [197] of the reasons). The Tribunal did not accept the applicant was excluded from her family or the Tamil community or she hardly saw her family because they were fearful of associating with her (at [197] of the reasons). The Tribunal was not satisfied the applicant faced a ‘real chance’ of experiencing significant harm in Sri Lanka due to her or her husband’s past involvement with the LTTE or the Karuna group (at [251] to [252], [255] to [258] of the reasons). The applicant’s claims as a Tamil widow The Tribunal accepted the applicant is a widow of Tamil ethnicity who belonged to the LTTE for a relatively brief period and her late husband was a member of the LTTE and later the Karuna Group ([264] of the reasons). The Tribunal acknowledged that single women in areas such as the applicant’s area may face a range of problems ([264] of the reasons). The Tribunal accepted the applicant may have experienced some difficulties following the death of her husband, but did not accept that she was repeatedly raped and found ‘much of her evidence regarding the problems she claims to have experienced to be lacking in credibility or exaggerated’ ([264] of the reasons). The Tribunal had regard to the contents of two documents being the UNHCR Guidelines and the DFAT Report. At [263], the Tribunal also noted it raised with the applicant it ‘was aware’ some widows without family support may be at risk in the applicant’s area, but noted in the applicant’s case, she had received family support in the past and it appeared she would receive family support if she returned to Sri Lanka, and would not be at risk of harm. The Tribunal noted the applicant’s response that she would have stayed with her family, if possible, but due to her own and her husband’s past association with the LTTE, this was not possible.

Ratio Decidendi

Legal Principle Established

At [265] of the reasons, the Tribunal recorded it was ‘not satisfied that [the applicant] faces a real chance of suffering serious or significant harm on return to Sri Lanka because of her status as a Tamil widow’. The Tribunal expressly states at [265] it reached that state of mind, of not being so satisfied, for the reasons set out at [266] to [270] of the reasons, which were as follows:266. First and most significantly, I do not accept that the applicant was isolated or lacked family support prior to leaving Sri Lanka or that she would lack family support if she returned. According to her evidence she stayed with her parents and later with a friend in [X] following the birth of her [child] in [XXXX]. She lived with her parents and one of her [siblings] some months after her husband’s death in [XXXX] and they provided her with financial support following this.267. I note that according to the applicant’s evidence at the hearing, she would have continued to live with her parents if she had not been fearful that her LTTE background would cause them problems. This does not sit well with the fact that she lived with them for a number of months immediately after her husband was killed. Nor is there any credible evidence before me which suggests that the applicant or other members of her family were harassed or harmed following [her husband’s death] because of her past association with the LTTE. I do not accept that the applicant was forced to live apart from her family because of her past association with the LTTE. If she lived alone it appears to have been by choice.268. I also note that according to the applicant’s entry interview [X] lived with her in [X] and also stayed with a school friend on occasion. According to her August 2014 statement, [X] and her mother lived with her for some time in 2012. She told the delegate that her [sibling] came to stay with her in 2012. At the hearing she said that she had never lived with [X], but in light of her earlier statements I have great difficulty accepting this. These statements suggest that she was not without support and perhaps not living alone prior to leaving Sri Lanka.269. Secondly, the applicant is not without financial resources. She told the delegate that she derived an income from a [block of land] which her father had given her. According to her statement dated 4 October 2018 still owns a block of land in [X] which was given to her by her mother. It is unclear whether this is the land referred to earlier, but in any event it is clear that she has some assets in Sri Lanka. I also note that she has experience as a [X] which would assist her to earn a livelihood if she returned to her homeland.270. Third and finally a number of the risk factors set out in the UNHCR guidelines do not apply to her. She is not a displaced person, at least not in the sense that she had to relocate to another area or live in a camp. She lived in [X] where she had lived most of her life and from where her family also resides. None of her family members were or are detained so she would not be vulnerable to pressure from the security forces for that reason. And while she and her husband both belonged to the LTTE in the past they ceased to be members in 2004, her husband was a member of the pro-government Karuna group at the time of his death and there is no credible evidence before me which suggests that she faced problems with the security forces or anyone else because of this prior to leaving Sri Lanka.CONSIDERATION