EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2025] FedCFamC2G 816

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816

File number(s): ADG 322 of 2018
Judgment of: JUDGE LUCEV
Date of judgment: 30 May 2025
Catchwords:

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizens of Sri Lanka – ethnic Tamils – whether failure to obtain, supply and have regard to relevant material – whether material provided by the referred applicant to the person making the decision before the decision was made – whether any other material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review – whether failure to consider all integers of claims made – claim of inability to subsist – claim of extortion – whether failure to have regard to evidence – whether unreasonableness – whether jurisdictional error

WORDS AND PHRASES - “to the person making the decision” – “engaging with the applicant and the application” – “material that is in the Secretary’s possession or control”
Legislation:

Migration Act 1958 (Cth) Pt 7AA, ss 473BB, 473CA, 473CB, 473DB, 473DC, 473DD, 474, 476

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11, 12

Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407

Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142; (2005) 216 ALR 1; (2005) 84 ALD 545

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 630; (2003) 75 ALD 630

ASO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1310

AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82; (2019) 376 ALR 93; (2019) 168 ALD 401

BBI18 v Minister for Home Affairs [2020] FCA 84

BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 80 AAR 170; (2019) 167 ALD 295

BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74

CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1

CNY17 v Minister for Immigration & Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413

CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367

CSV15 v Minister for Immigration…

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AGLC
EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816
Case
[2025] FedCFamC2G 816
Decision Date

CaseChat Overview and Summary

In the case of EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs, the applicants, EJQ18 and his family, sought judicial review of the decision made by the Immigration Assessment Authority (Authority) to affirm the Delegate’s decision to refuse their application for Special Humanitarian Entry (SHE) visas. The applicants, who are citizens of Sri Lanka and ethnic Tamils, argued that the Authority failed to consider relevant material, failed to have regard to evidence, and made decisions that were unreasonable. The legal issues before the court were whether the Authority failed to obtain, supply, and have regard to relevant material, whether it failed to consider all integers of the claims made, and whether the decision was unreasonable or constituted a jurisdictional error.

The court examined whether the Authority had engaged with the applicants and the application, and whether it had considered all material that was in the Secretary's possession or control. The court found that the Authority had considered the material referred to it under s 473CB and the applicants' submissions, but did not have regard to the new information provided by the applicants as it did not satisfy either limb of s 473DD. The court noted that the Authority had considered a range of country information and the applicants' claims, and had made findings based on the evidence presented. The court held that the Authority's decision was not unreasonable and did not constitute a jurisdictional error.

The court further examined whether the Authority had failed to have regard to evidence, particularly the evidence relating to the applicants' claims of being stateless, their imputed political opinion, and their fear of harm upon return to Sri Lanka. The court found that the Authority had considered the evidence and made findings based on the country information and the applicants' evidence. The court held that the Authority's decision was not unreasonable and did not constitute a jurisdictional error.

The court dismissed the applicants' claims and affirmed the Authority's decision to refuse their application for SHE visas. The applicants were not satisfied that they would face a real chance or risk of serious or significant harm upon return to Sri Lanka, and the court found that the Authority's decision was supported by the evidence and country information. The applicants' claims were speculative and did not meet the criteria for complementary protection under the Migration Act. The court held that the Authority's decision was not unreasonable and did not constitute a jurisdictional error. The final orders of the court were that the applicants' claims for judicial review were dismissed, and the Authority's decision to refuse their application for SHE visas was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.BACKGROUND The background to the matter prior to the making of the Authority Decision is as follows:(a)on 8 June 2013 the first applicant EJQ18 and his wife EJT18, both citizens of Sri Lanka, arrived at Christmas Island, together with their eldest two children, EJU18 and EJV18: CB 333. Their youngest child, the fifth applicant, EJX18 was subsequently born in Australia;(b)participated in an Unauthorised Maritime Arrival & Induction Interview (“Arrival Interview”) on 18 May 2014;(c)on 28 November 2016 the Applicants applied for the SHE Visas. The Applicants’ claims can be summarised as follows (at CB 99-105):(i)EJQ18 is a Tamil and originates from the Central Province of Sri Lanka but does not have Sri Lankan citizenship and is stateless;(ii)EJQ18 lived for a time in the Northern Province with his family and as a result, would be imputed with links to the Liberation Tigers of Tamil Eelam (“LTTE”);(iii)EJQ18’s father was beaten by the Sri Lankan Army (“SLA”) and the family fled to India in 1990. They lived in an Indian refugee camp from that time onwards. EJQ18 did not return to Sri Lanka;(iv)in approximately 2010-2011 EJQ18 tried to travel from India to Italy on a false passport but was stopped at the airport and arrested, and he spent around six months in jail and his name was published in the media in relation to the case;(v)EJQ18 participated in hunger strikes and protests with other Sri Lankan refugees in his refugee camp in India. The Indian police intelligence service (“Q Branch”) kept him under surveillance in the refugee camp and made his life difficult. He clashed with a Tamil NGO called “OFFER” when he refused to attend a Sri Lanka Independence Day ceremony in 2009;(vi)EJQ18 applied for, and was granted, a Sri Lankan passport in or around 2012 because he was being repeatedly questioned by the Q Branch regarding his continued stay in India, but had no intention of using his passport to return to Sri Lanka;(vii)EJQ18 fears being harmed by the Sri Lankan authorities for reasons of:(A)his Tamil race; (B)his imputed political opinion as an LTTE supporter because he lived in LTTE controlled areas; (C)because his details were disclosed as part of the Department’s data breach in February 2014 (“Data Breach”); (D)as a returning failed asylum seeker; and (E)on the basis that he will have an adverse profile because of his court case and protests; and(viii)EJQ18’s children claimed that as they had not lived in Sri Lanka before they would be mistreated: CB 162;(d)on 1 June 2018 the Delegate refused to grant the SHE Visas: CB 333-367. The Delegate was not satisfied the Applicants would face a real chance or risk of serious or significant harm. On the same day the matter was referred to the Authority for review under Pt 7AA; and(e)on 25 June 2018 the Applicants provided submissions and new information to the Authority: CB 388-468; (f)on 23 July 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 472-494.AUTHORITY DECISION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The background to the matter prior to the making of the Authority Decision is as follows:(a)on 8 June 2013 the first applicant EJQ18 and his wife EJT18, both citizens of Sri Lanka, arrived at Christmas Island, together with their eldest two children, EJU18 and EJV18: CB 333. Their youngest child, the fifth applicant, EJX18 was subsequently born in Australia;(b)participated in an Unauthorised Maritime Arrival & Induction Interview (“Arrival Interview”) on 18 May 2014;(c)on 28 November 2016 the Applicants applied for the SHE Visas. The Applicants’ claims can be summarised as follows (at CB 99-105):(i)EJQ18 is a Tamil and originates from the Central Province of Sri Lanka but does not have Sri Lankan citizenship and is stateless;(ii)EJQ18 lived for a time in the Northern Province with his family and as a result, would be imputed with links to the Liberation Tigers of Tamil Eelam (“LTTE”);(iii)EJQ18’s father was beaten by the Sri Lankan Army (“SLA”) and the family fled to India in 1990. They lived in an Indian refugee camp from that time onwards. EJQ18 did not return to Sri Lanka;(iv)in approximately 2010-2011 EJQ18 tried to travel from India to Italy on a false passport but was stopped at the airport and arrested, and he spent around six months in jail and his name was published in the media in relation to the case;(v)EJQ18 participated in hunger strikes and protests with other Sri Lankan refugees in his refugee camp in India. The Indian police intelligence service (“Q Branch”) kept him under surveillance in the refugee camp and made his life difficult. He clashed with a Tamil NGO called “OFFER” when he refused to attend a Sri Lanka Independence Day ceremony in 2009;(vi)EJQ18 applied for, and was granted, a Sri Lankan passport in or around 2012 because he was being repeatedly questioned by the Q Branch regarding his continued stay in India, but had no intention of using his passport to return to Sri Lanka;(vii)EJQ18 fears being harmed by the Sri Lankan authorities for reasons of:(A)his Tamil race; (B)his imputed political opinion as an LTTE supporter because he lived in LTTE controlled areas; (C)because his details were disclosed as part of the Department’s data breach in February 2014 (“Data Breach”); (D)as a returning failed asylum seeker; and (E)on the basis that he will have an adverse profile because of his court case and protests; and(viii)EJQ18’s children claimed that as they had not lived in Sri Lanka before they would be mistreated: CB 162;(d)on 1 June 2018 the Delegate refused to grant the SHE Visas: CB 333-367. The Delegate was not satisfied the Applicants would face a real chance or risk of serious or significant harm. On the same day the matter was referred to the Authority for review under Pt 7AA; and(e)on 25 June 2018 the Applicants provided submissions and new information to the Authority: CB 388-468; (f)on 23 July 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 472-494.AUTHORITY DECISION

Ratio Decidendi

Legal Principle Established

In the Authority Decision the Authority:(a)had regard to the material referred to it under s 473CB and to the Applicants’ submissions: CB 474 at [4]-[5]; (b)did not have regard to the Applicants’ new information as it said it did not satisfy either limb of s 473DD: CB 474 at [6];(c)in circumstances where EJQ18 had been granted a Sri Lankan passport whilst living in India rejected EJQ18’s claim that he was stateless and found that the Applicants were Sri Lankan nationals: CB 478 at [21];(d)accepted, consistent with country information, that the Applicants moved to India in 1990 for their safety and security, where they lived until mid-2013 as refugees: CB 478-479 at [23]-[24];(e)accepted that EJQ18 attempted to depart India illegally in 2010-2011 and was arrested and imprisoned for six months, but found that the articles and publications relied on by EJQ18 did not disclose his full name or image and it was not satisfied the Sri Lankan authorities were aware of the publications or had identified him as a result of the publications, as claimed: CB 479 at [25];(f)accepted that EJQ18 received additional attention from Q Branch but did not accept this extended to Q Branch informing the Sri Lankan authorities of his presence and activities in India. It found EJQ18’s claim in this regard was speculative. It also found EJQ18’s unsubstantiated claims that his telephone calls and movements were monitored were an overstatement of the level of interest in him: CB 479 at [26]. The Authority found there was no foundation for EJQ18’s claim that his court case may be reopened: CB 479-480 at [27];(g)accepted that EJQ18 and EJT19 participated in mass protests in India and that EJQ18 participated in two hunger strikes, but was not satisfied that this involvement caused any ongoing difficulties or consequences for the Applicants: CB 480 at [28]; (h)accepted that EJQ18 encountered OFFER staff on occasions, but based on country information and EJQ18’s evidence did not accept that these interactions would have been reported to the Indian or Sri Lankan authorities: CB 480-481 at [29];(i)summarised its factual findings and having regard to relevant country information, found that there was no impediment to EJQ18 applying for an identity document on return to Sri Lanka: CB 482-484 at [36]-[40];(j)having considered a range of country information which pointed to an improved security situation in Sri Lanka, was not satisfied that the Applicants faced a real risk of harm, including torture, on return to Sri Lanka due to the difficulties they faced in India and limited involvement in protest activities, combined with their profile of being Tamils from the Northern province who left Sri Lanka thirty years ago: CB 486 at [46];(k)accepted that the third, fourth and fifth applicants, EJU18, EJV18 and EJX18 may have an accent, but did not accept that they would be treated negatively on this basis and found that this claim was speculative: CB 486 at [48];(l)accepted that EJQ18 and EJT18 may be identified as having departed Sri Lanka illegally in contravention of the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I&E Act”): CB 486 at [49], and having regard to relevant country information (see CB 486-488 at [52]-[55]), the Authority found that EJQ18 and EJT18 may be detained for a short period in an airport holding cell whilst waiting to be brought before a Magistrate; (m)was not satisfied that questioning at the airport, investigation, imposition of a fine or the potential of being held in detention amounted to serious harm and that both EJQ18 and EJT18 had family in Sri Lanka who may be able to act as guarantors if required: CB 487-488 at [55]; (n)that the provisions of and penalties provided for in the I&E Act were laws of general application and any process or penalty the Applicants may face would not constitute persecution: CB 488 at [56];(o)accepted the Applicants were affected by the Data Breach but did not accept the Sri Lankan authorities would be aware of the family’s claims for protection as a result of the Data Breach: CB 488 at [57]; (p)accepted that as returning asylum seekers, the Applicants may be subject to a period of surveillance from the Sri Lankan authorities and social stigma in the north of Sri Lanka, but was not satisfied that this would amount to serious harm, and did not accept that the challenges the Applicants may face in re-establishing themselves amounted to serious harm: CB 488 at [59];(q)found that the Applicants did not meet the criterion in s 36(2)(a): CB 488 at [60];(r)in considering the Applicants’ claims under the complementary protection criterion, relied upon its anterior findings in concluding that the Applicants did not face a real risk of significant harm because they were Tamils from the North who departed Sri Lanka illegally, had lived in India for an extended period of time, or were briefly engaged in protest activities: CB 489 at [63];(s)whilst accepting that the Applicants may be identified as returning asylum seekers, was not satisfied that any monitoring or social stigma they may face would amount to significant harm: CB 489 at [64]), and was not satisfied that the questioning, imposition of bail or a fine, and the potential of being held in detention for a short period, amounted to significant harm: CB 489-490 at [64]-[65], and(t)found that the Applicants did not meet the criterion in s 36(2)(aa): CB 490 at [66].GROUNDS AND CONSIDERATION