DEC22 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DEC22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1192

File number(s):	ADG 240 of 2022
Judgment of:	JUDGE GERRARD
Date of judgment:	30 July 2025
Catchwords:	MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly consider evidence – whether the Tribunal’s findings were unreasonable – sur place claims – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Cases cited:	Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division:	Division 2 General Federal Law
Number of paragraphs:	54
Date of last submission/s:	24 April 2025
Date of hearing:	8 May 2025
Place:	Adelaide
Counsel for the Applicant:	Greg Schipp
Solicitor for the Applicant:	Australian Presence Legal
Counsel for the First Respondent:	Alex Chan
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Second Respondent:	Submitting appearance, save as to costs

ORDERS

ADG 240 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DEC22

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	30 JULY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.The application be 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 GERRARD:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (the visa). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, his application cannot succeed.

   BACKGROUND

3. The applicant arrived in Australia as an unauthorised maritime arrival on 24 September 2011. He is a Sri Lankan Tamil from Jaffna, Northern Province (Court Book (CB) 4).

4. On 31 January 2012, he participated in a Protection Obligation Evaluation (POE) interview (CB 33).

5. In that interview, the applicant made the following claims (CB 4-5):

   ·In 2006, he was working at a hardware store when it was searched by the Sri Lankan Navy (SLN). He was questioned by the SLN about persons who were assumed to be members of the Liberation Tigers of Tamil Eelam (LTTE) and who had purchased items at the store. He was taken to the SLN camp and interrogated regarding any connections he might have had with the LTTE. He was beaten and accused of LTTE association.

   ·The applicant’s employer was able to secure his release, which required the applicant (and his employer) to sign a blank piece of paper, which they did.

   ·He continued to be questioned and harassed by the SLN, who would take items from the shop and promise to pay for them later. Due to the harassment, the applicant left the job and the business shut down. The authorities then attended at his house to question him about why he had left that employment and whether he had joined the LTTE.

   ·The applicant became fearful and he travelled to Colombo to get a passport so that he could leave Sri Lanka. Upon his return, he was taken into custody and questioned about why he went to Colombo. His neighbours were also questioned.

   ·The applicant went to live and work in Qatar from 2006 to 2009. When he returned to Sri Lanka, he was again questioned by police and forced to pay 300,000 rupees to secure his release. He spoke to a lawyer about bringing a case against the police but he was advised not to and was instead encouraged to leave the country.

   ·The applicant travelled to Singapore and then resided temporarily in Malaysia and Indonesia before departing for Australia. Following his departure from Sri Lanka, the authorities had continued to harass his family.

6. On 21 March 2012, the POE officer found that the applicant was not a person to whom Australia owed protection obligations and referred the matter for an Independent Protection Assessment (IPA) (CB 3-19).

7. On 27 March 2012, the applicant provided further supporting documents, including a summons document dated 14 March 2012 addressed to the applicant’s mother, requiring her to appear at the local police station for questioning in relation to the applicant’s 2006 arrest (CB 20-21).

8. On 2 October 2012, the IPA recommended that the applicant be recognised as a person to whom Australia has protection obligations (CB 30-48).

9. On 25 November 2015, the applicant was invited to apply for the visa which is the subject of this review (CB 53-58).

10. On 25 April 2016, the applicant lodged his visa application (CB 59-97). In support of that application, he provided a further statutory declaration in similar terms to earlier material, however noting that the applicant’s mother and sister had since fled to Australia following the issue of the 2012 summons and ensuing harassment from the authorities (CB 99-101). The applicant appointed a lawyer as his authorised representative (CB 102-104).

11. On 22 November 2017, the applicant attended an interview before a delegate of the Minister (CB 124, 147). On 30 November 2017, the applicant’s lawyer provided submissions in support of the application, including with respect to the effect of attention given to the applicant’s family, as well as relevant country information (CB 122-140).

12. On 5 December 2017, the delegate refused to grant the applicant the visa (CB 144-160). Although the delegate largely accepted the factual background, it was not satisfied the applicant was of adverse interest to the Sri Lankan authorities (CB 153). The delegate was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 155-156).

13. On 15 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 161-162).

14. On 13 April 2022, the applicant was invited to attend a hearing scheduled for 24 May 2022 (CB 186-189). Prior to the hearing, the applicant provided the Tribunal with supporting documents, including translated and original copies of the 2012 summons, statements from family members about their harassment in Sri Lanka, visa grant notices for the applicant’s mother and sister, and documentary evidence of the applicant’s activities as part of the Sri Lankan Tamil community in Australia (CB 216-246).

15. On 24 May 2022, the applicant attended at the Tribunal hearing with his lawyer and with the assistance of a Tamil interpreter (CB 247). The applicant provided post-hearing submissions on 1 June 2022 and 1 August 2022 relating to the relevance of the harassment of his family, and the applicant’s sur place activities and his personal circumstances in Australia (CB 250-269, 281-291). On 20 July 2022, the applicant was invited to attend a further hearing scheduled for 3 August 2022 to discuss matters raised in the post-hearing submissions (CB 272-275). The applicant again attended that hearing with his lawyer and a Tamil interpreter (CB 292).

16. On 22 August 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 298-334).

17. On 15 September 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.

    APPLICATION TO THIS COURT

18. On 7 April 2025, the applicant filed an amended application for judicial review containing two particularised grounds as follows (without alteration):

    The decision of the Tribunal was infected with jurisdictional error in that:

    1.The finding that there was no investigation into the Applicant in 2012 was made:

    a.Without regard to all of the evidence,

    b.With impermissible speculation,

    c.Without adequate reasons,

    d.Irrationally, illogically and unreasonably.

    2.The findings that the Applicant’s sur place activities did not give rise to an adverse profile was made:

    a.Without regard to all of the evidence,

    b.Without adequate reasons,

    c.In response to the wrong question,

    d.Irrationally, illogically and unreasonably.

19. The materials before the Court include:

    ·the amended application filed on 7 April 2025;

    ·a Court Book numbering 334 pages (marked as Exhibit 1);

    ·the affidavit of Shamili Kugathas sworn and filed on 15 September 2022, annexing the Tribunal’s decision (taken as read and in evidence at the hearing on 8 May 2025);

    ·the affidavit of Shamili Kugathas sworn and filed on 7 April 2025, annexing transcripts of the Protection Visa interview and each Tribunal hearing (the Kugathas affidavit) (taken as read and in evidence at the hearing on 8 May 2025);

    ·written submissions filed on behalf of the applicant on 7 April 2025; and

    ·written submissions filed on behalf of the Minister on 24 April 2025.

    THE TRIBUNAL’S DECISION

20. As noted above, the applicant’s amended application attacks two specific findings in the Tribunal’s decision.

21. The first is with respect to the effect of the 2012 summons. The Tribunal set out its findings in that regard as follows:

    [76]The Tribunal is prepared to accept that the two documents submitted by the applicant and referred to as ‘summonses’ dated 14 March 2012 and 22 March 2012 are genuine documents and that they came from the police in Mannar. The Tribunal accepts the applicant’s evidence that these documents were given to his mother. Despite what appear to be some discrepancies in the translation of these documents into English, the Tribunal accepts that these documents request the applicant to come to the police station in Mannar on 20 March 2012 and 27 March 2012 for an inquiry in relation to the 2006 incident.

    [77]The applicant agreed in the hearing that these documents were from the police and not from a court, and he agreed that they did not indicate there were any formal charges or court proceedings existing against him at the time, in relation to the 2006 incident. The Tribunal accepts this.

    [78]Despite accepting that the summonses are genuine documents and that they indicate the police had some kind of interest in the applicant in March 2012, the Tribunal does not accept that in 2012 there was an ongoing police (or any other) investigation into the applicant in respect of the 2006 incident. The Tribunal has found above that based on the applicant’s evidence and his travel history, he was not of adverse interest to the authorities and not suspected of being connected to the LTTE when he departed or arrived in Sri Lanka in 2006 or in 2008 or 2009. The Tribunal does not consider it to be plausible that in 2012, three years after the war had ended with the military defeat of the LTTE and the greatly improved security situation in the north and east, the police were going to commence or reopen an investigation into the applicant and his possible links to the LTTE in respect of the 2006 incident.

    …

    [108]The Tribunal has considered the applicant’s claim that he fears harm because the authorities continued to show an interest in him up to 2012 with the summonses. In his post-hearing submissions, the applicant states that the summonses are genuine and his mother and sister were subject to ongoing harassment from the Sri Lankan authorities after he left, and this all demonstrates the police had an ongoing interest [in] him. In the second hearing, the Tribunal put to the applicant that even if it accepts that his mother and sister were harassed by the authorities after he left Sri Lanka and until they left in 2012, and even if the Tribunal accepts that the summonses, which refer to the 2006 hardware shop incident, are genuine, the Tribunal might not accept based on the evidence and the length of time which has passed since these events, that the applicant would still be of interest to the authorities and face a real chance of serious harm if he returned to Sri Lanka in the reasonably foreseeable future. The applicant responded that he has a continuous threat and fears that if he goes back he will not be able to lead a peaceful and free life.

    [109]As set out above, the Tribunal accepts that the summonses are genuine and the police requested the applicant to attend the Mannar police station in relation to the 2006 incident. As also discussed above, the Tribunal has found that the applicant was never genuinely considered by the authorities to be connected to the LTTE, including in 2006 after the incident occurred, or in 2008 or 2009 during the period when he returned to Sri Lanka and departed again in October 2009. The Tribunal has also found that in 2012 the police were not going to commence or reopen an investigation into the applicant and his links to the LTTE in relation to the 2006 incident and that no charges or court proceedings existed in respect of the applicant at that time. The Tribunal has found that the authorities continued to harass the applicant’s mother and sister after the applicant left Sri Lanka and up to the time they left in 2012. Despite finding that the applicant’s mother and sister continued to be harassed until they left, in light of the Tribunal’s other findings relating to the applicant not being a person of interest to the authorities when he was in Sri Lanka and that an investigation was not going to be commenced or reopened in 2012 into the 2006 incident, and the fact that a further 10 years has passed, the Tribunal finds that the authorities would not continue to have an interest in the applicant in respect of the 2006 incident (which was the subject of the summonses) or for any other reason, and the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.

22. The second ground of the amended application relates to the Tribunal’s findings regarding the applicant’s sur place activities in Australia. The Tribunal summarised and set out the evidence about the applicant’s activities in Australia (at [79]-[86]).

23. The Tribunal accepted that the applicant had been involved with the Community Migrant Resource Centre (CMRC) for a number of years and it accepted that the photos he provided were genuine. It accepted that he had attended peaceful meetings or rallies in support of refugees approximately once a year for the past five years, and that these were directed at the Australian government rather than the Sri Lankan government (at [87]). However, given the applicant did not mention these activities at his interview before the delegate, the Tribunal found that his involvement in such activities was not significant or active at that point in time (at [88]).

24. The Tribunal considered the applicant’s evidence about his involvement with the Tamil Coordination Committee (TCC). In particular, it found the letter from the TCC (which he provided after the first Tribunal hearing) to be vague and lacking in detail, and accordingly gave it no weight. The Tribunal found that the applicant had exaggerated his involvement with the TCC given he had not mentioned it at the first Tribunal hearing, and that such involvement would not attract a higher degree of adverse interest from the Sri Lankan authorities (at [91]-[93]).

25. The Tribunal accepted the applicant’s own evidence that he was not involved with any activities that support a separatist agenda for Tamils and that he is opposed to violence. The Tribunal accepted that he attended various Mullivaikkal Remembrance Day and Martyrs Day events, and that he occasionally assisted with the setup at such events for about an hour or so. The Tribunal acknowledged that these are self-evidently pro-Tamil events, but found that the applicant’s involvement in such events must be considered in context (at [95]-[96]).

26. Whilst the Tribunal accepted it is possible that his involvement in such events might come to the attention of Sri Lankan authorities, the Tribunal did not accept, based on country information from DFAT and the UK Upper Tribunal, that the applicant would be considered to have had a significant role in those events or undertaken a significant role in Tamil separatism. The Tribunal did not accept that the applicant’s activities in Australia would be of particular interest to the Sri Lankan authorities if he were to return in the reasonably foreseeable future (at [111]-[117]).

27. Further, the Tribunal rejected the applicant’s assertion that all Tamils were considered enemies of the Sri Lankan government. The Tribunal observed that the applicant had not demonstrated against the Sri Lankan government, displayed the LTTE emblem, been part of the LTTE or had any links with the LTTE, and had not actively advocated for Tamil statehood. The Tribunal therefore found that the applicant would not face a real chance of serious harm in Sri Lanka because of his activities in Australia (at [116]-[117]).

    CONSIDERATION

28. As outlined above, the amended application contains two particularised grounds of judicial review. Both grounds allege jurisdictional error in the Tribunal’s findings.

    The Tribunal’s consideration of documents from the Mannar Police

29. As observed, ground one relates to what have generally been referred to as the “summons documents”. Whilst both parties used this term, it was accepted by all that the documents were not summons documents in the sense understood in Australia. The first of these documents is described as an “Extract from the Information Book of Mannar Police Station” and states (CB 217):

    You are advised to attend various complaints Section of the Mannar Police Station on 27.03.2012 at 9.00am to conduct an inquiry into a complaint lodged against you. A complaint has been lodged against you on 14.03.2006.

30. The second of these documents is a handwritten note which is said to come from the Mannar Police Station and states (CB 218-219):

    I inform you that as report to the police station, Mannar on 20.03.2012 in order to trial the complaint made by you on 14.03.2006.

31. As observed above, the Tribunal accepted that these documents were genuine and that they had emanated from the Mannar Police Station. The Tribunal also accepted that the documents were a request to the applicant to go to the Mannar Police Station for an inquiry in relation to an incident in 2006. However, whilst accepting that the police had “some kind of interest” in the applicant, the Tribunal did not accept that these documents were evidence to indicate there was an ongoing police investigation. In this respect, the Tribunal found that his travel history indicated he was not of adverse interest to the authorities and had not come under suspicion when he departed or arrived in Sri Lanka in 2006, 2008 or 2009.

32. The applicant submitted that because the Tribunal had accepted the summons documents as genuine, there was no room for it to make a finding other than that there was a complaint lodged against the applicant, and an ongoing investigation into the applicant. The applicant submitted that the Tribunal’s finding that there was not an ongoing police investigation was “completely problematic” in light of its acceptance of the documents as genuine.

1. The Court does not accept this contention. The task before the Tribunal was to look at the documents and ascertain their probative value. The documents themselves were vague. They had no hallmarks of an actual investigation. The sum total of the probative value of the two documents is that the police required the applicant to attend a police station in respect of an earlier complaint. That aligned with the Tribunal’s finding that “the police had some kind of interest”, but that it was not evidence of an ongoing police investigation. The Tribunal’s finding in this respect was a rational assessment of the probative value of the material before it. It was certainly within its decisional freedom. It’s acceptance of the documents as genuine did not mean it was required to accept that they supported the totality of the applicant’s claim in this respect.

2. In the Court’s view, the Tribunal’s assessment was entirely orthodox. It considered and then accepted the documents were genuine and that they originated from the police in Mannar. It then considered their probative value in respect of the claim advanced by the applicant. It then assessed them in context with other evidence before it, including the applicant’s ability to come and go from Sri Lanka without interference from the authorities during material times. In the absence of any further documentation substantiating a continuing interest, it was clearly open to the Tribunal to find that there was no such interest.

3. The applicant also submitted that the Tribunal failed to take into account the evidence of the statutory declarations made by the applicant’s mother and sister, noting that the Tribunal accepted his mother and sister had continued to be harassed by the authorities. However, as observed by the Minister, the acceptance of the continued harassment of the mother and sister should be understood in the context that their own successful protection applications involved distinct and independent claims of harassment by authorities which had no bearing on the applicant’s claims. Those claims included extremely sensitive information which the Tribunal observed the mother and sister had not consented to sharing with the applicant for that reason. In those circumstances, it is understandable why that information was not set out in detail or put to the applicant. In any event, it was not relevant, save for the statement that the police had provided the letter requiring the applicant’s attendance at the police station. That had already been accepted by the Tribunal. To the extent that the mother and sister said the letter demanded the applicant’s attendance, that is a tone which is not evident form the terms of the letter itself. There was no error in the Tribunal limiting it’s assessment of the letter from the police to the document itself. The evidence of the mother and sister added nothing further, save for support for a matter that the Tribunal had already accepted.

4. To the extent that the applicant complains the Tribunal had impermissibly speculated as to the activities of the police, the reverse is true. The applicant seeks to extrapolate from the evidence of fairly anodyne correspondence from the police to suggest that this must have been evidence that the police had embarked upon an investigation. There was no evidence of that before the Tribunal. No evidence other than correspondence, and reasonably informal correspondence, requiring the applicant to attend a police station in respect of a complaint, without any indication of consequences for failure to attend, the existence or possibility of formal charges, or any subsequent investigation. Whilst it is possible there might have been an ongoing investigation, that is not apparent from these documents and is in fact the kind of impermissible speculation the applicant seeks to impugn the Tribunal with.

5. No jurisdictional error arises in respect of ground one.

   The Tribunal’s assessment of the applicant’s sur place activities

6. The applicant takes issue with the Tribunal’s finding that the applicant’s sur place activities did not give rise to an adverse political profile. The relevant findings are set out as follows:

   [116]Based on country information, the Tribunal is prepared to accept it is possible that by attending Heroes Day and Mullivaikkal Remembrance Day events in Sydney that the applicant has come to the attention of the Sri Lankan authorities. However, as explained above, the Tribunal does not accept that the applicant has a history of active engagement in any significant sense with the TCC (or any other Tamil separatist diaspora organisation). The Tribunal does not accept that the applicant would be considered to have been involved in organising these commemorative events and it finds that he has not been involved with other proscribed Tamil organisations in Australia.

   [117]Based on the evidence before the Tribunal set out above, it is not satisfied that the applicant’s attendance at these annual commemorative events and assisting at times with set up, would be sufficient for him to be considered by the Sri Lankan government to have undertaken a significant role in Tamil separatism. According to the Tribunal’s findings, the applicant has not been active on behalf of any particular Tamil organisation in Australia, he has not attended meetings or demonstrations against the Sri Lankan government organised by Tamil diaspora groups or been a leader or member of such groups, he has not displayed the LTTE emblem, he has not been involved in meaningful fundraising for such groups, or engaged in activities on social media or signed petitions or engaged in the other types of activities identified as of potential concern to the Sri Lankan authorities. The Tribunal has also found that he has not been part of the LTTE, he was not considered to have links to the LTTE during his time in Sri Lanka, he does not have family connections to the LTTE and he has not actively advocated for Tamil statehood. In light of this, the Tribunal finds that the applicant would not face a real chance of serious harm arising from his attendance at commemorative events in Australia if he returned to Sri Lanka in the reasonably foreseeable future.

   [118] In relation to the applicant’s voluntary work at the CMRC, the Tribunal does not consider there to be evidence before it that suggests the applicant’s activities with the CMRC involve, or would be perceived to involve, support for the LTTE, or the promotion of Tamil separatism, or that his involvement would have attracted the adverse attention of Sri Lankan authorities in Australia. Likewise, the Tribunal does not consider that the applicant attending a rally in support of refugees in Australia to highlight their situation to the Australian government, around once a year, would have attracted the adverse attention of the Sri Lankan authorities. The Tribunal notes that in one of the photos provided by the applicant of him at a rally he is holding a sign that appears to say “Sri Lanka military Worst in the world”. The applicant’s evidence, which the Tribunal accepts, is that this was at a rally in support of refugees generally in Australia earlier in 2022. It was not a protest rally in relation to the Sri Lankan government or in support of the LTTE or Tamil separatism, and the applicant was not displaying the LTTE emblem. In the event that the applicant was seen and identified at this rally by a member of the Sri Lankan authorities while he was holding this sign (which he was not holding in the second photo he provided), the Tribunal does not accept that this one instance, even combined with his attendance at the Heroes Day and Mullivaikkal Remembrance Day events in Australia discussed above, would result in the applicant being considered a person of adverse interest by the Sri Lankan authorities. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the reasonably foreseeable future.

7. The applicant particularly attacks the Tribunal’s finding in [118] that the rally in which the applicant was photographed holding a banner was a rally in support of refugees in Australia, not a protest rally against the Sri Lankan government. The applicant says this finding was illogical and unreasonable for a number of reasons.

8. Firstly, the applicant says that what was relevant was whether the protest rally would be perceived as an anti-government rally. Further, the Tribunal had misunderstood the applicant’s evidence that he did not participate in activities against the government and that he had, in fact, meant that he only participated in rallies if the Australian government gave permission for such a rally. Secondly, in two of the photographs relied upon by the applicant, one person in the photograph was holding a banner which read “Tamil Genocide is a Crime - We Want International Investigation” (CB 244) and another person was wearing a shirt which had a message “Don’t Let Sri Lanka Hide… Genocide” (CB 245), which could only be interpreted as anti-government activities. Thirdly, the Tribunal had already accepted that the applicant may have come to the attention of Sri Lankan authorities. Fourth, there was no explanation from the Tribunal as to why the Sri Lankan authorities would “excuse” the applicant from holding a banner simply because he was only seen holding such a banner once. There was also no evidence that this was the only time this had occurred. Fifth, even if his involvement was limited in the way the Tribunal found, this would not undo the effect of the perception of his wider profile. Finally, the Tribunal did not take into account that the events were organised by organisations which were banned in Sri Lanka.

9. The Court accepts the Minister’s submission that the Tribunal properly considered the activities the applicant had engaged with in Australia against the country information which discussed the activities and profiles which attracted the adverse attention of the Sri Lankan authorities. The Tribunal accurately understood that country information as a basis for finding that the applicant may have come to the attention of the authorities by virtue of his attendance at these rallies. However, the Tribunal also set out that the country information indicated that “the extent and duration of the activities engaged in is also relevant” (at [113] of its reasons). Ultimately, the country information advised that the people Sri Lankan authorities were interested in were those who were perceived to have “undertaken a “significant role” in Tamil separatism” and:

   [114]Those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who were suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.

10. Assessing the applicant’s claims in respect of his sur place activities against the country information was an entirely proper way for the Tribunal to consider those activities. Ultimately, the Tribunal found that the applicant’s engagement in attending rallies, even if brought to the attention of the Sri Lankan authorities, simply did not meet the profile of those persons the authorities held an adverse interest in. Such a finding was clearly open on the material before the Tribunal.

11. As to the applicant’s contention that the Tribunal had misconstrued his evidence at the hearing and that he in fact meant he would only attend a rally where the Australian government granted permission, the Court notes that the particular response of the applicant’s evidence is as follows (Annexure B of the Kugathas affidavit):

    Yes, if there is anything to do with the community, I don’t do anything against the government. If they are doing something with the support of, or with the permission of government, I go and help them. I go and involve in those activities.

12. The Court finds that is a somewhat ambiguous statement that could be interpreted in the manner suggested by both the applicant and Minister. However, the very next exchange is as follows:

    Member: Are you actively involved in any activities that support a separatist agenda for Tamils in Sri Lanka?

    Applicant: As far as I know, to my knowledge, nothing of that sort of meetings has happened here, and nobody has asked me, also or invited me. If there is anything to support the community or the refugees, I just go and get myself involved.

13. This echoes an earlier exchange as follows:

    Member: Have you been involved in Sri Lankan or Tamil politics in Australia?

    Applicant: I get involved in something to do with refugees or something to do with prayers for the martyrs, or last time they had this newly vital function?

    …

    Applicant: If there are any supportive activities like the visa should be given to the refugees, if they have some activities like that, then I will go and take part. Not in a violent manner.

    Member: What might a supportive activity be? What’s an example?

    Applicant: There are maybe some meetings held at a town hall in Australia. There are different cultural people will come and tell their problems to this government. I also go and attend the meeting. This is a way of telling our problems to the government.

    Member: To the Australian government?

    Applicant: Yes. In a good manner, not a violent manner.

    Member: This is about supporting refugees generally rather than just about Sri Lanka, is that right?

    Applicant: Yes. Some meetings are arranged by only the Sri Lankan refugees and some of them are arranged by all other refugees including Sri Lankan.

14. What can be seen from the above is that the evidence before the Tribunal was that the applicant’s own explanation of his attendance at protest rallies was that they were in support of, and advocating for, refugees in Australia. That is precisely what the Tribunal found. It is also abundantly clear that the Tribunal’s questioning of the applicant related to establishing whether or not the applicant may or may not fit the profile of people the country information identified as likely to be of adverse attention to the authorities. The Court does not accept that there is anything unreasonable or irrational about the findings drawn by the Tribunal from this evidence.

15. In the specific context of a rally which the applicant had already said was in relation to refugees within Australia, the Court does not accept that the Tribunal was required to consider what other people were wearing or holding at that rally. The Tribunal could, and did, rely upon the applicant’s evidence about the context of that rally. It then did precisely what it was required to do, which was to assess the extent of the applicant’s attendance at that rally, as well as his actions at that rally, including him holding a banner in respect of the Sri Lankan military. The Tribunal did that. In the context of the applicant’s claims that he had attended rallies in Australia which might be perceived to be anti-Sri Lanka, the Tribunal observed that there was photographic evidence of him attending one rally, where he held a sign and which he said was in support of refugees. What other people may or may not have been wearing or holding had no further bearing on the applicant’s claims given that context.

16. The Court does not accept that there was any inconsistency between the Tribunal’s acceptance that the Sri Lankan authorities may be aware that the applicant had attended this and other events, and its finding that he would not be of adverse interest. The Tribunal clearly explained that its finding in this respect was grounded in the country information which set out who would have an adverse profile in Sri Lanka. For the reasons set out above, the Court sees no error in the Tribunal’s assessment of the country information in this regard.

17. Similarly, the Tribunal did not need to explain why the Sri Lankan authorities might “excuse” the applicant for his attendance at the rally and his brandishing of the banner. This is because the Tribunal had considered who the Sri Lankan authorities might view adversely, and what activities the country information said might lead the Sri Lankan authorities to perceive a person to have a significant role in Tamil separatism. It was not that the Tribunal found that the applicant’s activities would be excused. Rather, the Tribunal found that the nature and extent of the applicant’s activities (based on the very limited evidence before it) did not lead to a profile that the country information suggested would attract adverse interest.

18. It is also clear that the Tribunal was alert to the need to consider whether the Sri Lankan authorities would perceive the applicant to be involved at a significant level even if he was not in fact so involved. That is clear from the language used by the Tribunal. Firstly, the country information set out by the Tribunal clearly identifies that those at risk would be persons whose actual or perceived activities might bring them within the ambit of Sri Lankan interest. Furthermore, the Tribunal expressly stated that it did not accept the applicant “would be considered” to be involved in organising rallies (at [116]), “considered to have links to the LTTE” (at [117]), or “considered a person of adverse interest” (at [118]).

19. Finally, as submitted by the Minister, the Tribunal was clearly alive to the fact that the rally had been organised by the TCC, as it expressly acknowledged that at [116]. It also expressly acknowledged that the TCC was a proscribed organisation (at [51] and [85]). It simply found that the applicant did not have a history of active engagement with this organisation. That was a finding which was open on the evidence.

20. No jurisdictional error is made out in respect of this ground.

    CONCLUSION

21. The amended application for review and submissions made by the applicant have not identified any jurisdictional error on the part of the Tribunal.

22. Accordingly, the application is dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       30 July 2025