DJW18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1480
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJW18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1480
File number: MLG 1903 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 10 September 2025 Catchwords: MIGRATION – protection (class XA) (subclass 866) visa – review of decision of the former Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s decision refusing the applicant a visa – whether Tribunal’s decision attended by jurisdictional error – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 214, 214(3)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A, 424AA, 438, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) sch 2, pt 3
Cases cited: Craig v South Australia [1995] HCA 58, 184 CLR 163
CRI026 v The Republic of Nauru[2018] HCA 19
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, 14 ALD 291
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145, 190 FCR 248
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72
Tickner v Chapman [1995] FCAFC 1726, 57 FCR 451
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of last submission/s: 30 July 2025 Date of hearing: 13 August 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Liddy Solicitors for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1903 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJW18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant’s application filed on 29 June 2018 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
The applicant applies for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) made on 8 June 2018 affirming an earlier decision of a delegate of the (then) Minister for Immigration and Border Protection not to grant the applicant a Protection (Class XA) (Subclass 866) visa. The applicant alleges that the Tribunal’s decision is attended by jurisdictional error and should be set aside.
For the reasons explained below, the application will be dismissed with costs.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia on 23 November 2013 as the holder of a Visitor (subclass 600) visa. On 31 January 2014, the applicant applied for a Protection (Class XA) (Subclass 866) visa, claiming to fear harm because of her imputed political opinion, as a perceived supporter of the Liberation Tigers of Tamil Elam (LTTE).
The applicant enclosed with her visa application several documents including, inter alia, a statement of claims, together with country information which the applicant said was relevant to her claims for protection. In short, the applicant claimed to fear harm from the Sri Lankan authorities, particularly the Criminal Investigation Department (CID), claiming that the CID was searching for her because she assisted her daughter (K), who had been detained by the Sri Lankan army for six months due to perceived links to the LTTE. The statement provided by the applicant together with her visa application explained that she, as a Tamil woman from Sri Lanka, suffered harm because of the Sri Lankan civil war. She said that in 1995, following a period of bombing and fighting, the LTTE attempted to recruit her daughter on multiple occasions. The applicant and her family relocated, but the LTTE persisted attempting to recruit her daughter. The applicant claimed that in 2004, the ‘Karuna’ group, a (then) newly formed group in opposition to the LTTE took control of the area in which she lived. She claimed the Karuna and the Sri Lankan army captured her son in-law and her daughter, releasing her daughter after six months, but that her son in-law’s location remains unknown. She claimed that the Sri Lankan authorities perceive her and her family as sympathisers of the LTTE, and she would be persecuted if she returned to Sri Lanka.
On 17 February 2015, the Department invited the applicant to attend a protection visa interview scheduled for 13 March 2015, which the applicant attended.
By letter dated 13 April 2015, the Department notified the applicant that her application for a protection visa was refused, enclosing with that letter a copy of the delegate’s decision record detailing the delegate’s consideration and engagement with the applicant’s claims and evidence, and findings in relation thereto. Although the delegate believed the applicant gave a generally credible account in relation to her family circumstances, her internal relocations, and the detention of her daughter and disappearance of her son in-law, the delegate was concerned that the accounts were confused, generalised and lacking in detail.
The delegate accepted that the applicant had lived in areas of Sri Lanka affected by conflict and had relocated as a result, that her daughter had been detained for six months and that her son in-law was missing, but did not accept that the applicant had any adverse profile due to her links or imputed links to the LTTE. The delegate was not satisfied the applicant would face any chance of persecution in Sri Lanka, or that the applicant was a person in respect of whom protection obligations were owed under either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act)[1].
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
TRIBUNAL PROCEEDING
On 7 May 2015, the applicant applied to the Tribunal for review of the delegate’s decision, with the assistance of a solicitor. The Tribunal acknowledged that review application on 11 May 2015, by letter transmitted to the applicant’s representative, noting that the validity of the application had not been assessed. The letter informed the applicant that if she wished to provide any material or written arguments for the Tribunal to consider, she should do so as soon as possible.
On 16 December 2016, the Tribunal wrote to the applicant advising that it would soon be inviting her to a hearing. That letter indicated that the applicant should provide any additional evidence relevant to her application as soon as possible. By letter on 3 April 2017, the Tribunal invited the applicant to attend a hearing scheduled for 20 April 2017, enclosing with that letter a ‘Response to hearing invitation – MR Division’ form, and requesting the applicant complete and return that form to confirm her intention to appear at the hearing, and to attach to that form any additional information, documents or written arguments which the applicant wished the Tribunal to consider. The applicant, via her representative, returned a completed ‘Response to hearing invitation’ on 11 April 2017, requesting and receiving an extension of time until 18 April 2017 in which to provide additional submissions. On 18 April 2017, the applicant’s representative provided the Tribunal with a statutory declaration dated 18 April 2017, written submissions and further evidence in support of the applicant’s visa application. The statutory declaration set out the applicant’s claims and the basis upon which she feared harm.
On 20 April 2017, the applicant attended the hearing, together with her representative and her daughter, K, to give evidence and present arguments in relation to her application for review. The applicant was assisted by an interpreter in the Tamil and English languages, and during that hearing the Tribunal received oral evidence from K. At that hearing, the Tribunal indicated that the applicant could provide further written submissions to it by 4 May 2017. On 2 May 2017, the applicant’s representative requested a copy of the audio recording of the hearing and was provided same.
On 8 May 2017, the applicant’s representative requested an extension of time in which to provide further written submissions to 12 May 2017, which the Tribunal granted.
On 14 May 2017, the applicant’s representative provided the Tribunal with post-hearing submissions addressing issues arising at the hearing.
The submissions addressed, inter alia, the applicant’s demeanour and any perceived inability to answer questions clearly at the hearing. The representative submitted that the applicant’s extensive traumatic history contributed to her difficulty focussing and concentrating on the questions asked during the hearing. The submissions contend that it was clear the applicant was unable to understand complex issues, gave irrelevant answers and was unable to recall significant past events, but that her difficulties were genuine and she desired to be truthful and sincere to the best of her ability. The submissions also claimed that, in addition to differences in educational and cultural background, the applicant had recently suffered a stroke, which worsened her ability to observe and recall specific events and details. In that regard, the applicant enclosed a letter from her doctor (Dr Nallaratnam) dated 3 May 2017, which ‘certified’ that the applicant was receiving medical care for confusion, having suffered a stroke on 20 June 2014. The doctor’s letter explained that the applicant suffered from confusion, reacted to requests belatedly and inappropriately, had poor memory and repeated almost all questions, finding some questions difficult to answer, and needed constant care and attention. The applicant’s representative also made submissions in relation to the effects of trauma on the ability of a survivor to clearly recall specific events.
On 20 July 2017, the applicant was advised that the Tribunal had been reconstituted, and her matter allocated to a different member to complete the review.
On 15 November 2017, the Tribunal wrote to the applicant, inviting her pursuant to s 424A of the Act to comment on information from a third party which was subject to a non-disclosure certificate under s 438, because the information was given in confidence. The Tribunal’s correspondence set out the relevant information as follows:
·that the applicant was working at a shop in Dandenong and was not sick, as she had claimed;
·that in Sri Lanka her husband had a business and a shop, and her son and daughter had businesses;
·that her other children residing in London travelled to Sri Lanka often, and her son who used to reside in Europe had been deported; and
·that she faced no threat in Sri Lanka.
The Tribunal’s correspondence explained that the information may be relevant because it served to indicate that the applicant had not been truthful about her health conditions, which she argued were part of the reason for her difficulties in recalling events in Sri Lanka and broader memory problems, as well as her claims that she could not work in Sri Lanka due to illness, the letter from a doctor provided to the Tribunal purportedly verifying that she had suffered a stroke in June 2014, and that she required constant care as a result. The Tribunal also noted that the information may cast doubt on the applicant’s claim to fear persecution or harm in Sri Lanka, especially because her children had returned to Sri Lanka in circumstances where she claimed that her children had been required to leave Sri Lanka due to ongoing persecution. The Tribunal further noted that the information may call into question the applicant’s claims that she and her husband had separated and that her children in Sri Lanka had abandoned her. The Tribunal put the applicant on notice that the information cumulatively may also cast doubts about her credibility, and as a result, the Tribunal may not accept her claims to fear persecution in Sri Lanka, or that she faced a real risk of significant harm.
The applicant was requested to provide her comments or response about that information by 29 November 2017 and was informed that if she did not provide her comments, the Tribunal may decide her review without taking any further action to obtain her views. No written response or comments were given within that timeframe.
On 8 December 2017, the Tribunal invited the applicant to attend a second hearing scheduled for 3 January 2018. The applicant’s representative requested the Tribunal postpone the scheduled hearing because of the representative’s unavailability on the date scheduled. The Tribunal rescheduled the hearing for 8 February 2018. On 31 January 2018, the applicant’s representative requested a further postponement of the hearing because the representative was ill and the Tribunal rescheduled the hearing to 14 February 2018.
The applicant attended the second hearing where she was assisted by her representative and an interpreter in the Tamil and English languages. Further medical documents were provided to the Tribunal at the hearing. During the hearing, the Tribunal gave the applicant an opportunity to provide further submissions in relation to her review application, indicating those submissions must be received by 28 February 2018.
On 26 February 2018, the applicant appointed a new representative. The applicant’s new representative wrote to the Tribunal seeking an extension of the deadline by which the further submissions must be provided and requesting a copy of the hearing recording.
By her new representative, the applicant provided the Tribunal with further submissions on 21 March 2018, addressing the information put to her by the Tribunal’s s 424A letter. The submissions contend that the information put to the applicant by the Tribunal was not correct, and that the relevant shop in Dandenong was owned and operated by the applicant’s daughter, K, and the applicant accompanied K to work. The enclosed statutory declaration made by K explained that K worked at a shop in Dandenong and took her mother with her to work because she could not leave her alone without care, but that the applicant did not perform any work at the shop. As to the applicant’s husband’s business in Sri Lanka, and her children’s businesses there, the applicant submitted that she separated from her husband in 2009, and even if that information put to her by the Tribunal’s s 424A letter were true, it would be irrelevant to her claims for protection. The submissions noted that the applicant’s husband was very ill, that he had not worked for some time and earned a very limited income. As to the allegation that the applicant’s children in London had returned to Sri Lanka, the applicant explained that the reason for doing so was for the children to care for their sick father. As to the information alleging that the applicant faced no threat in Sri Lanka, the applicant reasserted her claims and noted that the information was provided by an anonymous source, and ought be given no weight. The applicant mentioned that her relationship with her children who reside overseas is less than cordial since the applicant left her husband.
On 30 April 2018 the applicant provided the Tribunal with further documents, being medical evidence about her husband’s condition (in support of her claim that her husband did not have capacity to earn an income) and a letter from her son in-law about the financial capacity of the family in Sri Lanka.
On 8 June 2018, the Tribunal affirmed the delegate’s decision, notifying the applicant by letter dated 12 June 2018 and attaching a copy of the Tribunal’s Decision Record and Statement of Decision and Reasons (Decision), transmitted to the applicant’s representative. The Decision records that the Tribunal decided to affirm the decision not to grant the applicant a protection visa.
TRIBUNAL’S DECISION AND REASONS
The Decision commences by summarising the matter before the Tribunal at [1]–[6]. It sets out the statutory criteria and policy considerations relevant to the grant of a protection visa, including Ministerial Direction No. 56 made under s 499 of the Act, and policy guidance in the PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines in assessing the applicant’s claims at [7]–[12], together with relevant country information in the 2018 country report for Sri Lanka produced by the Department of Foreign Affairs and Trade, and begins to consider the applicant’s claims and evidence from [13]. The applicant’s claims about her ill health and memory problems are discussed at [16]–[24], her background and claims to fear harm are discussed at [25]–[48], and the Tribunal considers and records its findings about those claims at [49]–[116]. The Tribunal notes its concerns in relation to the applicant’s credibility at [20] and concludes at [117] and [118] respectively it was not persuaded that the applicant satisfied ss 36(2)(a) or 36(2)(aa) of the Act.
The Tribunal records at [120] that it sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituted the delegate’s decision with a decision to refuse to grant the applicant a Protection (Class XD) visa. This appears to be included in error, but I will later return to this part of the Decision.
Before summarising the applicant’s claims, the Tribunal directed its attention to the non-disclosure certificate earlier mentioned, and the applicant’s evidence about her health and memory difficulties. The Tribunal noted that the information the subject of the certificate related to allegations from a third party casting doubts on aspects of the applicant’s protection claims, and that particulars of the information and a copy of the certificate were sent in a s 424A letter on 15 November 2017, inviting the applicant to comment on the information, but the applicant failed to do so. The Tribunal noted that the applicant claimed not to have received the s 424A letter. The Tribunal put the relevant information to the applicant at the hearing pursuant to s 424AA of the Act, gave her representative a copy of the original s 424A letter, and gave the applicant additional time after the hearing to comment on the information. The Tribunal noted that the applicant had provided a response to that information in writing on 21 March 2018: Decision at [14].
The Tribunal noted the applicant claimed to have had a stroke and suffered memory difficulties as a result. The Tribunal noted the submissions contending that the applicant’s past traumatic experiences and stroke made it difficult for her to recall specific events and details. The Tribunal also noted receipt of the letter from the applicant’s doctor dated 3 May 2017 and the contents, including the doctor’s opinion that the applicant was confused, suffered from poor memory, found it difficult to answer questions and required constant care and supervision: Decision at [16]. The Tribunal noted the claim that the applicant’s health problems, educational background and trauma contributed to her difficulty answering its questions: at [17]. The Tribunal noted a second letter from the same doctor was presented at the second hearing, which letter was dated 12 February 2018, repeating the contents of the earlier May 2017 letter. At the Tribunal hearing, the applicant explained that the doctor was not at the clinic when the applicant went to get an updated letter, so the doctor’s wife ‘tampered’ with the old letter: at [18].
The Tribunal recounted other medical evidence provided by the applicant, noting that her memory issues and stroke were not mentioned in those materials, and it did not accept the applicant had suffered a stroke as alleged: Decision at [19].
The Tribunal accepted that the applicant may have memory issues associated with her age and experiences living in a country engaged in a protracted civil war, noting there were points in the hearing where she appeared confused or her evidence was vague: Decision at [20], and that the Tribunal kept that in mind when assessing her claims and evidence. The Tribunal considered the applicant was able to answer questions at the hearing lucidly, and its concerns about the plausibility of aspects of the applicant’s claims were not assuaged by claims the applicant was suffering from memory issues: at [20].
The Tribunal noted that the medical evidence indicated the applicant had last seen a psychologist in 2014–2015, that treatment referred to in turn by a letter from another treating practitioner, Dr Wale. The Tribunal noted that there was no reference in the correspondence and notes of Dr Wade to the applicant suffering from a stroke, nor to any treatment by Dr Nallaratnam. The applicant’s evidence about treatment by Dr Nallaratnam was vague at the hearing, as was her evidence about seeing a psychiatrist. The Tribunal accepted the applicant may have seen a psychiatrist on an ‘on and off’ basis while in Australia but had not identified any specific diagnosis apart from some issues with her memory. The Tribunal did not accept the applicant’s mental health was so poor as to lead to a real chance of serious harm or real risk of significant harm if returned to Sri Lanka: Decision at [21].
The Tribunal considered that the applicant’s health problems and incapacity to work had been exaggerated: Decision at [23], and noted the applicant’s evidence that she helped in her daughter’s shop. The Tribunal relevantly did not accept that the applicant was unable to work or that she required constant care: at [24].
The Tribunal summarised the applicant’s claims as follows:
·she feared serious harm from the Sri Lankan authorities on the basis of her imputed political opinion as a supporter of the LTTE, because she frequently travelled to India from 2007 to 2012, because she was a Tamil from north-east Sri Lanka, because her daughter (K) and son in-law were detained by the Sri Lankan army in 2004 and because her son is considered an LTTE sympathiser by the CID: Decision at [27];
·she moved to an area (Area T) from her home (Area J) in April 2004 when the LTTE split into different factions;
·her daughter K and K’s husband were intercepted and captured by members of the Karuna (a pro-government paramilitary organisation) and handed to the Sri Lankan army. K was detained, beaten, assaulted and forced to perform labour for six months and K’s husband has never been heard from again. To secure K’s release, the applicant had to pay the army and K was required to report to the army each week;
·the applicant’s family was targeted, several of her relatives have been granted protection visas in Australia, and the Sri Lankan army believe the applicant’s family are LTTE sympathisers;
·the applicant and K moved to Area T in late 2004, which was affected by a tsunami in December 2004. The army visited the area looking for K, during which time there were incidents where students were shot on nearby beaches;
·she travelled to India frequently from 2007, but was prevented by the authorities from leaving the country because they considered that she supported the LTTE and was travelling to India to pass information to LTTE supporters there;
·In September 2013, one of her sons was questioned by the CID: at [28].
The Decision also records that the Tribunal had regard to the statutory declaration provided by the applicant dated 18 April 2017, and reproduced the most ‘significant’ of the applicant’s claims in the Decision at [30], which are summarised above, but are briefly set out as follows:
·The LTTE began recruiting young people to its movement in 1995, one of those approached was K, the applicant’s daughter. The applicant relocated to avoid K being forcibly recruited;
·In 2004, the applicant moved again, K was arrested and held in detention for 6 months. At that time, the Karuna paramilitary harassed everyone from the applicant’s home region because of suspected links to the LTTE. During her detention, K was tortured and the Karuna targeted the rest of the applicant’s family;
·The Karuna arrested K and her husband (the applicant’s son in-law). K’s husband has never been heard from since. K fled Sri Lanka in 2006 and she is now an Australian citizen. The applicant says that she and her daughter K went through the same suffering at the hands of the Karuna;
·The applicant’s son, now (at the time of the Decision) living in the UK, was questioned in September 2013 by the CID;
·The applicant’s nephew was accused of supporting the LTTE and fled Sri Lanka, he was ‘accepted’ by Australia as a refugee in 1997: Decision at [30].
The Decision records that the applicant gave oral evidence at the hearing about her prior experiences and fears upon returning to Sri Lanka, including that:
·she had left Sri Lanka because the CID and army were looking for her, because she helped the LTTE in the past by giving them food, particularly following the release of her daughter in 2004: Decision at [32]–[33]. The applicant was unable to recall exact dates or timeframes in relation to the places she lived: at [34]. The applicant and her husband separated in 2009: at [34]. She said that she and K used to make the LTTE food: at [35];
·after K left Sri Lanka, the CID and army would visit the applicant to ask about K, and the applicant hid in a different house or in a lane behind her house. She stated that she was never caught: at [37];
·she came to Australia in 2009 because her nephew had died, returning after 15 days, then coming to Australia again in 2013 because her mother (who lived in Australia) was sick and because the CID were looking for her (the applicant): at [38];
·she visited India 12 times from 2007 to 2012 and was visited there by some of her children who could not return to Sri Lanka: at [39];
·her son (T) was taken by the CID for questioning in Sri Lanka after the war, and the applicant said her son blamed her for his trouble because she used to support the LTTE. The applicant initially said she had no further contact with T, but later said she had little contact: at [40];
·she said her husband was sick, and she would not return to live with him if she returned to Sri Lanka: at [41];
·she claimed that people who helped the LTTE in the past are still being detained and harmed, and she fears being harmed: at [42].
The Tribunal also summarised K’s oral evidence during the April 2017 hearing, being that she had come to Australia in 2006 and was granted protection on the basis that her and her husband were arrested by the Karuna as suspected LTTE supporters. She was unable to say when she and her husband were arrested and indicated she had tried to forget the experience. K said that she had returned to Sri Lanka two or three times since 2006 to see her mother: Decision at [43]–[45]. K said that her mother, the applicant, had faced a lot of problems from the CID, and that the problems were mostly because the applicant paid money to get K released from detention, and the fact that K did not subsequently comply with the conditions of her release: at [46].
K said that there was some suggestion that her husband had turned against the family since he was detained by the Karuna, and the Tribunal dismissed that possibility as speculation: Decision at [47]. K noted that her husband remained missing, and that the authorities had been harassing her mother (the applicant) since paying for K’s release in 2003 or 2004: at [48].
The Tribunal made the following findings about the applicant’s ‘experiences’ in Sri Lanka:
·it accepted the applicant was forced to relocate because of the civil war, and that her relatives were killed in that war, including as set out in her statutory declaration: Decision at [49];
·it did not accept the applicant faced a real chance of serious harm, in relation to the past incidents, upon return to Sri Lanka: at [49];
·it found the claims that the applicant was visited by the CID were ‘very vague’ and did not accept those claims: at [50];
·it accepted that K and her husband were detained by the Karuna in 2004, that K was held for six months and mistreated, and that the applicant’s son in-law had not been heard from since that time. It accepted K had reporting requirements after her release: at [51];
·it did not accept the applicant was of adverse interest to the CID or army after K left Sri Lanka in 2006 and for a period continuing until the applicant left Sri Lanka in 2013: at [52], and made that finding on the basis of concerns in relation to the applicant’s evidence which could not be explained by her health or memory issues;
·it found that the applicant’s oral evidence in relation to issues with the CID in the period from 2006 to 2013 was vague, confused and evasive: at [53]. When queried about the harm she had suffered, the applicant responded in general terms that they used to come and harass and torture her, eventually stating at the first hearing that they never managed to talk to her because she hid, and at the second hearing saying the CID did talk to her, but she was unable to recall where and appeared to confuse locations: at [53]. The Tribunal found this evidence vague and unconvincing;
·it considered that K’s evidence that her mother’s problems were due to her mother paying to have K released, was undermined by the applicant’s evidence, which stated that it was her son in-law’s family members who paid to have K released: at [53], [55];
·it did not accept the applicant’s evidence that she was in hiding from the CID, finding that claim vague and somewhat implausible: at [54];
·it identified other concerns in relation to the applicant’s claim that the authorities had an ongoing adverse interest in her from 2006 to 2013, noting she had freely travelled in that time and did not seek protection upon arrival to Australia in 2009. The Tribunal found her evidence about the reasons she returned to be inconsistent, along with her evidence of paying bribes, and that K had returned to Sri Lanka despite having been granted refugee status in Australia: at [56];
·it did not accept that the applicant was questioned or of adverse interest to either the CID or Karuna: at [57];
·it found any chance the applicant would face serious harm was ‘remote’: at [59];
·it accepted the applicant provided some assistance to the LTTE in the past, but was not satisfied that involvement would give her an ongoing profile: at [60];
·it considered the applicant’s evidence about her adverse profile, and noted the claimed reasons for it were inconsistent and contradictory: at [61]–[62], and did not accept her son was interrogated and harmed by the CID in September 2013 as claimed;
·it did not accept the applicant’s family were under surveillance: at [63];
·it did not accept that the applicant was questioned in relation to her trips to India or that the authorities stopped her from travelling to India or suspected her of passing information to the LTTE: at [64]. It found the chance the applicant would face any risk of persecution because of her trips to India and imputed assistance to the LTTE, to be remote: at [64];
·it did not accept the applicant was questioned or threatened by the authorities with respect to the food she provided to the LTTE, or regarding the profiles of her children, or for any other reason: at [65]. It found the applicant did not face a real chance of persecution on any basis claimed, if returned to Sri Lanka: at [65].
As to the applicant’s claim that she would face a risk of persecution because some of her family members were refugees in western countries, and she would thereby be imputed with a pro-LTTE opinion and face serious harm if returned, the Tribunal:
·accepted K faced issues from the Karuna and Sri Lankan army, but did not accept the applicant had a well-founded fear of persecution on that basis: Decision at [68];
·it accepted the applicant’s other children (a daughter and son) went to the United Kingdom before 2006, and although the matter was unclear, accepted they may have been granted refugee status there, but did not accept the applicant had any well-founded fear of persecution on that basis: at [69];
·it did not accept the applicant faced any real chance of serious harm because of her family members seeking, receiving or being denied asylum in western countries: at [73].
As to the applicant’s claims:
·to fear harm from paramilitaries – the Tribunal did not accept the applicant was of any adverse interest to anyone in Sri Lanka for any reason: Decision at [74]. It considered the evidence provided by the applicant’s representative, but referring to recent country information, and in recognition of its finding that the applicant was not of any interest to the authorities, it found the chance the applicant would face serious harm from paramilitaries on return to Sri Lanka to be remote: Decision at [74]–[80];
·she faced a well-founded fear of persecution on the basis of her Tamil ethnicity – the Tribunal, noting the conclusions and findings recounted above, and in reference to relevant country information produced by DFAT, accepted that Tamils in Sri Lanka faced a degree of harassment, discrimination and persecution in the period of civil war which concluded in 2009, but did not accept, in light of the developments and changed situation since the end of the war, that the applicant faced a real chance of suffering serious harm because she was Tamil: at [88];
·she would face a risk of harm because her status as a failed asylum seeker if returned to Sri Lanka – the Tribunal had regard to the applicant’s evidence at the hearing and the DFAT country information report, concluding that some returnees are detained for processing, but those detainees are not mistreated: at [95], [98]. The Tribunal was satisfied that, if detained, the applicant would be released without further incident and would not face a real chance of persecution as a failed Tamil asylum seeker: at [98]. It further concluded that any chance the applicant would be imputed with anti-government political opinion on the basis that she had sought asylum was remote: at [98];
·her capacity to earn a living if returned – the Tribunal considered whether the applicant faced a real chance of serious harm in the form of significant economic hardship: at [101]. The Tribunal considered the claim that the applicant’s health issues, and lack of family support may impact her ability to subsist, and her evidence that she was not on good terms with her family in Sri Lanka, not speaking to her husband, and could not work: at [103]. The Tribunal considered that evidence to be vague and internally inconsistent, noting the applicant had provided evidence to the Tribunal that she was separated from her husband since 2009, but later said she was living with him before she left Sri Lanka (in 2013). The Tribunal noted the applicant claimed not to speak to her husband and children on the one hand, but on the other had obtained documents from them to provide to the Tribunal: at [104]. On that basis, the Tribunal did not accept that the applicant had separated from her husband or was estranged from her children in Sri Lanka: at [104]. It therefore found that the applicant was likely to live with her husband and her son if she returned to Sri Lanka, and further that the applicant had exaggerated her husband’s health issues. It found that K would continue to financially support her if she was forced to return to Sri Lanka: at [104]. On that basis, the Tribunal found the applicant did not face a real chance of serious harm by reason of her claims to be unable to subsist: at [105].
The Tribunal also noted other matters raised by the applicant, including a purported fear of harm because of her Hindu religion. The applicant confirmed at the Tribunal hearing that she did not fear harm upon her return to Sri Lanka because of her religion: Decision at [106]. It also found the applicant did not face a well-founded fear of persecution because of ongoing chronic health problems: at [107].
For those reasons, the Tribunal concluded that the applicant did not satisfy the criteria in s 36(2)(a) of the Act: Decision at [109].
Assessing whether nonetheless the applicant fell within the s 36(2)(aa) criterion, the Tribunal did not accept the applicant faced a real risk of significant harm: Decision at [116].
On that basis, the Tribunal was not satisfied the applicant was a person in respect of whom Australia had protection obligations, and the Tribunal affirmed the delegate’s decision.
CONSIDERATION
By her judicial review application lodged on 29 June 2018, the applicant advances two grounds of review. First, the applicant contends the Tribunal erred in law by deciding the merits review without taking into account relevant information. Second, the applicant contends the Tribunal ignored relevant material in a way that affected its exercise of power.
At the commencement of the hearing, I explained that the Court’s task in undertaking a judicial review of the Tribunal’s decision is not to undertake a general merits review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds of jurisdictional error: Craig v South Australia [1995] HCA 58, 184 CLR 163 at 175. Therefore, absent identification of jurisdictional error, the Court cannot grant relief in respect of the Tribunal’s decision.
I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the first applicant some examples of jurisdictional error as including material errors by a decision-maker:
·misunderstanding the applicable law;
·asking the wrong question;
·exceeding the bounds of reasonableness;
·identifying a wrong issue;
·ignoring relevant material;
·relying on irrelevant material;
·failing to consider a “claim” or a relevant “integer” of a claim;
·in some cases, making an erroneous finding or reaching a mistaken conclusion;
·failing to observe some applicable requirement of procedural fairness; and
·showing actual or there is apprehended bias.
The grounds advanced in the judicial review application are generic and unparticularised. Although given the opportunity to do so, the applicant has not filed any amended application with particulars of the grounds of review, nor has she provided any written submissions addressing the grounds of review nor any affidavit material in furtherance of her application. During the hearing, by consent and with leave of the Court, the applicant was assisted by her daughter K. Through K, the applicant sought to tender documents which dealt with matters that have developed since the Tribunal’s decision. In effect, the documents sought to advance a merits argument based on changed or developing circumstances affecting the applicant. The documents were not relevant to assessing whether the Tribunal’s decision was attended by jurisdictional error, as alleged or otherwise, and leave to file the documents in court was consequently refused. The applicant was not otherwise able to elaborate on or explain the review grounds, which were apparently prepared by her former lawyer and with the help of a family friend. Instead, the applicant through K, descended into the merits of the Tribunal’s decision, arguing for a different result. The written grounds of review are addressed below.
Grounds 1 and 2
These grounds may be dealt with together, since ground 2 expresses differently the same complaint made in ground 1. By ground 1, the applicant says the Tribunal erred in law by deciding her review application without taking into account relevant information. And by ground 2, the applicant says the Tribunal ignored relevant material in a way that affected its exercise of power. As already noted, the grounds are unparticularised. The applicant does not identify the information or material said to have been overlooked, ignored or not considered, or how the said information or material was relevant. The absence of particulars alone provides a basis for the grounds to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
In any event, as the first respondent correctly observes, the Decision earlier summarised discloses that the Tribunal considered the allegations contained in the s 438 notification, the applicant’s medical evidence, K’s evidence, country information and the applicant’s claims and evidence at the hearing. The Tribunal also considered the applicant’s response to the s 424A letter. The Decision discloses the Tribunal otherwise considered the applicant’s claims and evidence, gave genuine consideration to them, and engaged in an active intellectual process in respect of her claims and evidence: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145, 190 FCR 248 at [57] citing Tickner v Chapman [1995] FCAFC 1726, 57 FCR 451 at 462 (Black CJ); Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, 14 ALD 291, 292 per Gummow J.
Neither of the grounds disclose jurisdictional error, and both fail.
Returning then to [120] of the Decision which under a heading “DECISION” reads:
120. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.
Read in isolation, this may suggest the Tribunal erred in refusing to grant the applicant a visa for which she did not apply. And having set aside the delegate’s decision refusing the visa for which the applicant applied, the visa application remains to be determined.
However when read as a whole, for the reasons explained below, I consider that it is tolerably clear that the Tribunal did no more than affirm the delegate’s decision refusing the applicant a protection visa and that what appears at [120] is in the nature of a typographical error – a remnant perhaps of another decision used by the Tribunal as a template for this decision – and demonstrative of a failure in proofing the final decision before publishing.
First, the Tribunal’s notification of decision letter to the applicant dated 12 June 2018, notifies the applicant that the Tribunal “decided to affirm the decision under review”.
Second, the “Decision Record” also sent to the applicant records the following:
DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.
Third, the Tribunal said at [6] of the Decision:
The issue in this case is whether the applicant faces a well-founded fear of persecution for a Convention reason or otherwise whether the complementary protection provisions apply. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
(emphasis added)
Fourth, the whole of the Tribunal’s reasoning process is directed to explaining why the applicant’s claims were not accepted and why the applicant did not satisfy the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. It would be incongruous with the entirety of the Tribunal’s reasoning and findings to read what appears at [120] as intended to set aside the delegate’s decision.
As the High Court observed in CRI026 v TheRepublic of Nauru[2018] HCA 19, it is unfortunate that such an error should have been permitted to occur and suggests a lack of care in final proof reading of reasons for the decision. Errors of this kind are likely to create doubts about the validity of decisions which should not arise. But such error does not show errors in the reasoning process, and may be disregarded: at [57].
As the applicant was unrepresented before the Court, I have reviewed the Tribunal’s Decision and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the two grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
DISPOSITION
The application for judicial review is dismissed.
The first respondent sought an order that the applicant pay his costs fixed in the sum of $5,000.00 in the event the application failed. That amount is less than the amount fixed by reference to Pt 3 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) for a migration proceeding that concludes at final hearing. The applicant did not advance any cogent reason why an award of costs in the amount sought should not be made. Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act)relevantly empowers the Court to award costs in all proceedings before it (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. And except as provided by the Rules or any other enactment, the award of costs is in the Court’s discretion.
In exercising the discretion conferred in s 214(3) of the FCFCOA Act, consideration must be given to whether there is a party in whose favour an award should be made and then the appropriate mechanism by which the quantum of that award should be calculated. Section 214(3) does not contain any express indication of the considerations upon which the Court is to decide which party should pay, and the extent of any costs that are to be paid. The power to award costs is to be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. The discretion is unconfined save that it is to be exercised having regard to the subject matter, scope and purpose of the empowering enactment: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 at [22] (per Gaudron and Gummow JJ).
In the instant case, considering the history of this matter, the result, the work involved as disclosed from the filings, and the length and complexity of the hearing, I consider the applicant should pay the first respondent’s costs in the amount sought. That amount is reasonable and reflective of the cost incurred. The applicant will be ordered to pay the first respondent’s costs fixed in the sum of $5,000.00.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 10 September 2025
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