EOL18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EOL18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 455

File number(s):

SYG 2474 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

13 March 2025

Catchwords:

MIGRATION – Whether Immigration Assessment Authority failed to properly apply the well-founded fear test – whether Authority failed to take into account relevant considerations    

Legislation:

Migration Act 1958 (Cth) s 5J

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NAHI v Minister For Immigration [2004] FCAFC 10

QAAT v Minister for Immigration (2005) 149 FCR 299

SZMUF v Minister for Immigration [2009] FCA 182

SZTEX v Minister for Immigration [2014] FCA 1269

Division:

General Federal Law

Number of paragraphs:

43

Date of hearing:

13 March 2025

Counsel for the Applicant:

In person

Solicitor for the Respondents:

Mr S Valliappan, Australian Government Solicitor

ORDERS

SYG 2474 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EOL18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	13 MARCH 2025

THE COURT ORDERS THAT:

1.The application filed on 4 September 2018 is dismissed.

2.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $7,800.

3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE GIVEN:

1. By an application to show cause filed with the Court on 4 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 August 2018, which affirmed a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) (XE-790) visa (visa).  

   BACKGROUND

2. The relevant background to the proceedings is derived from the written submissions of the first respondent, but does not appear to be in dispute.

3. The applicant is a citizen of Sri Lanka and claimed to have left Sri Lanka for India in 1990 when he was less than 1 year old (Court Book (CB) 66).  In March 2013, the applicant departed India by sea, arriving in Australia in April 2013 as an unauthorised maritime arrival (CB 52).

4. On 9 September 2016, the applicant lodged his application for the visa, claiming to fear harm in Sri Lanka on account of his brother’s involvement with the Liberation Tamil Tigers of Eelam (LTTE) (CB 26 to 84).

5. On 5 February 2018, the delegate refused to grant the applicant the visa, and found that he would not be of interest to the Sri Lankan authorities if he were to return to Sri Lanka (CB 157 to 173).

6. On 8 February 2018, the decision of the delegate was referred to the Authority for review (CB 174).  On 22 February 2018, the Authority received submissions from the applicant (CB 188 to 189).

7. On 17 August 2018, the Authority affirmed the decision not to grant the applicant the visa (CB 193 to 212).

   The Authority’s decision

8. The Authority accepted that the applicant was originally from Jaffna, was Tamil and a Christian, that the applicant had three surviving brothers each of whom live in Australia.  The Authority also accepted that another of their brother’s had fought with the LTTE from 1990 and was killed in 1992 (CB 195 to 196 at [8] to [10]). 

9. The Authority accepted that the applicant’s father had been questioned multiple times and mistreated by the Sri Lankan army, including having been stabbed on one occasion and beaten due to the involvement of the applicant’s brother with the LTTE.  The Authority accepted that the family had fled to India subsequently (CB 195 at [10]) and that the applicant’s father returned to Sri Lanka in 2009 to assess whether conditions were suitable for the family’s return, but was further mistreated and questioned by authorities such that he again fled to India (CB 192 and 196 at [11]).

10. However, the Authority did not accept that Sri Lankan authorities would have an interest in the applicant if he returned to Sri Lanka.  It was noted that the applicant’s brother was killed about 25 years ago.  The fact that his father was released in the past, the last occasion being over 8 years ago, indicated only a low-level of interest which the Authority considered would have been even further diminished by the effluxion of time.  The Authority observed that country information indicated the security situation and general conditions for Tamils had also since improved markedly.  Finally, it was noted that the applicant was only 9 months old when he left Sri Lanka so the authorities could not have any suspicion that he was involved in the LTTE (CB 201 to 202 at [36]).

11. While the Authority noted that one of the applicant’s brothers had been granted a protection visa in 2012, it observed there had been substantial changes in Sri Lanka since that time (CB 202 at [37]).  Accordingly, the Authority considered there was no real chance of the applicant suffering harm due to any real or perceived links to the LTTE, nor as a Tamil from the north (CB 202 at [38] to [39]).

12. The Authority also considered the applicant’s situation as a Christian.  While accepting that some anti-Christian acts had occurred, particularly under the previous government, the Tribunal found the number of incidents to be both low and decreasing.  The Authority found that official discrimination is rare, and no laws discriminated on the basis of religion (CB 202 to 203 at [42]).  The Authority was not satisfied that there is a real chance the applicant will experience harm as a Christian if he returned to Sri Lanka (CB 203 at [43]).  

13. The Authority also considered the situation of the applicant as a returning asylum seeker and having illegally departed from Sri Lanka.  The Authority referred to country information to the effect that a person who had unlawfully departed may be processed and held for a brief period in conditions which would not meet international standards and would generally be fined if they plead guilty and released or bailed if they plead not guilty (CB 203 to 204 at [48] to [49]).  While it was accepted that some returnees with links to the LTTE may be at risk of harm when processed at the airport, for the reasons already discussed above, the Authority did not consider that the applicant would have such a profile (CB 204 at [50]).  It was further accepted that the applicant being the subject of the data breach may mean that the authorities would recognise him as a returning asylum seeker, but that this would have been the situation without the data breach occurring (CB 204 at [50]).  The Authority recorded there being no evidence to suggest that the applicant had been involved in activities either in India, Indonesia or Australia which would give him a profile such that he would be monitored by the authorities (CB 205 at [52]).

14. In considering complementary protection, the Authority acknowledged the applicant would face possible action under the relevant legislation for his illegal departure.  However, based on what was accepted may happen, the Authority did not consider that there to be a real risk of significant harm during any processing at the airport, brief period of detention, requirement for bail surety or fine imposed (CB 207 at [67] to [68]).  Having found the applicant would not face a real chance of serious harm in respect of his other claims, and noting that a real chance and real risk involved the same standard, the Authority was not satisfied the applicant would face a real risk of significant harm (CB 205 at [65]).

15. The decision under review was therefore affirmed.

    APPLICATION TO THIS COURT

16. As noted above, the proceedings were commenced by an application to show cause filed on 4 September 2018.  The proceedings were initially docketed to another Judge of the Court (first primary Judge).  On 27 September 2018, a Registrar of the Court made orders for the preparation of the matter for a hearing, which included leave to the applicant to file any amended application by 4 January 2019, with the matter next to be listed for a callover before the first primary Judge on a date to be advised to the parties.  The proceedings were later placed in the central migration docket, possibly due to the retirement of the first primary Judge.

17. The proceedings next came before the Court on 29 October 2024 for a callover before a Registrar at which the parties appeared by telephone.  Further procedural orders were made for the preparation of the matter for hearing.  On 16 January 2025, the proceedings were docketed to me, and I made orders on that date listing the matter for hearing before me at 2:15pm on 13 March 2025, together with additional procedural orders and granting the applicant a further opportunity to file an amended application.  Other than a Notice of Address for Service filed with the Court on 27 September 2018, the applicant has not filed any additional documents in the proceedings, in time, or at all.  The first respondent filed written submissions as ordered, together with a Supplementary Court Book. 

18. The parties appeared before me this afternoon.  The applicant is unrepresented, but assisted by an interpreter in the Tamil language.  The applicant confirmed that he had spoken with, and could understand, the interpreter.  The first respondent’s written submissions were interpreted to the applicant before I ascended the bench.  At the commencement of the hearing, the Court explained to the applicant the procedure that would be followed and the limitations on the Court's jurisdiction in a review of this kind.  The applicant indicated that he understood.

19. In terms of the material before the Court, the applicant having not availed himself of the grant of leave to amend, the grounds of review will be those set out in the originating application.  That application was accompanied by an Affidavit in support, filed at the commencement of the proceedings, but given that the Affidavit document served only to annex a copy of the Authority's decision, the Court did not receive the Affidavit because that decision is now contained in the Court Book.  The Court Book and the Supplementary Court Book were tendered for the first respondent and marked Exhibits “1R” and “2R” (respectively).

    Grounds of review

20. The grounds raised by the applicant in his originating application are as follows:

    Ground 1

    IAA fell into jurisdictional error in that it did not fully apply the well-founded fear test.

    Particulars

    Authority failed to discern Convention nexus, apply it to the present country situation prevalent in Sri Lanka in the light of persecution of persons like the applicant based on familial links with the LTTE.

    Ground 2

    IAA made a jurisdictional error .

    Particulars

    IAA referred to improvements but failed to discern that persons like Applicant were persecuted.

    Ground 3

    IAA failed to take a relevant consideration.

    Particulars

    Applicant will be considered as a young Tamil from the previously LTTE controlled area and will be seen as a young Tamil attempting to regroup with the LTTE.

    Ground 4

    IAA failed to take a relevant consideration.

    Particulars

    There were deaths in the family which will lead the authorities to think that Applicant is sympathetic to the cause of the LTTE and regroup.

21. Each of the grounds was interpreted to the applicant in turn, complete with its particulars, and he was given the opportunity to address them.  

    Ground 1

22. By this ground the applicant says that the Authority erred by not properly applying the well-founded fear test.

23. The Authority summarised s 5J of the Migration Act 1958 (Cth) (Act) at [21] which defines “well-founded fear of persecution” and appropriately identified the applicant’s claims as being related to:

    (a)his being a Tamil from the north of Sri Lanka, having LTTE links, and having an imputed political opinion (CB 198 to 202 at [22] to [39]);

    (b)the applicant being a Christian (CB 202 to 203 at [40] to [43]); and

    (c)the applicant being a returning asylum seeker and having departed Sri Lanka illegally (CB 203 to 206 at [44] to [61]).

24. The first respondent says that it is clear on the face of the decision record that the Authority did identify how the applicant’s claims were connected to a Convention nexus (as defined by s 5J(1)(a)) and applied relevant and up to date country information when considering these claims. In particular, the Authority considered the DFAT Country Information Report on Sri Lanka dated 24 January 2017 as well as country information from the US Department of State, UK Home Office and UNHCR (CB 198 to 207).

25. The first respondent ultimately submitted that there is no basis to the argument that the Authority failed to apply the well-founded fear test or that the Authority did not appropriately consider and apply relevant country information.

26. When given the opportunity to address ground 1, the applicant told the Court that there remain “white van abductions happening” in Sri Lanka.[1]  He said that these people attack Christians and Muslims.  The applicant said there is “lots of religious-based violence problems”, and he made reference to a “bomb blast”, which he said happened years ago at Easter.[2]  The Court sought to explore with the applicant if there was a legal argument he wished to make about the error alleged by ground 1, or whether his complaint was, in essence, that the Authority simply did not accept that he was a person to whom Australia owed protection obligations, to which the applicant replied, "I am not happy about their decision".[3]

    [1] Transcript dated 13 February 2025 (Transcript) at T6.26

    [2] Transcript at T6.15 to 16

    [3] Transcript at T6.30

27. I accept that the applicant is not happy with the Authority's decision and the conclusions to which it came.  Having regard to the following submissions, which the applicant made in reply today, that position is somewhat understandable.  Specifically, the applicant made submissions to the effect that he left Sri Lanka for India in 1990, where he lived as a refugee.  He said that after coming to Australia, he is still living as a refugee at the age of 36, in circumstances where, as the Authority acknowledged, the applicant was only nine months old at the time that he left Sri Lanka.  It is understandable that that state of affairs is one which causes the applicant a sense of displacement and distress.

28. I acknowledge the applicant's submission that he does not know what will happen to him if he goes back to Sri Lanka, and that he says that he does not have anyone there and that there is no one who can look after him.  The Court has considerable sympathy for that position.  However, as I explained to the applicant a number of times during today's hearing, that is not a basis upon which I can remit the matter to the Authority, and I am not assessing the applicant's protection claims for myself.

29. Overall, the first respondent says that, properly construed, the applicant’s grounds of review argue that the Authority should have made different findings of fact and ultimately invite the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Given the applicant's repeated submissions that he is not happy with the Authority's decision, I do not think that he would cavil with that characterisation. However, without more, and provided that the Authority's conclusions were open to it on the material before it, dissatisfaction with the Authority's decision is not a sufficient basis to give rise to the type of serious legal error that would be required in order for the matter to be remitted.

30. To the extent that, in response to ground 1, the applicant made submissions about attacks on (in particular) Christians, having regard to the Authority's decision, the Authority, in fact, firstly, accepted that the applicant is a Christian (CB 202 at [40]) and that anti-Christian attacks have occurred, particularly under the former Rajapaksa government.  However, by reference to independent country information (which the Authority cited), it found that the number of those incidents was both low and reducing.  The Authority also observed that the applicant had not claimed that the family had suffered any harm from the authorities or anyone else by virtue of their Christian religion, nor that they had suffered harm in the form of an inability to practise their religion in Sri Lanka prior to their departure in 1990 (CB 203 at [42]).

31. It was for that reason that the Authority concluded that it was not satisfied that there was a real chance the applicant would experience harm as a Christian if returned to Sri Lanka at the time of the decision or in the reasonably foreseeable future (CB 203 at [43]).  Those conclusions were open to the Authority on the material before it, including country information.  In that respect, it is well settled that the choice of country information is a matter uniquely for the Authority as the decision-maker.[4]

    [4] NAHI v Minister For Immigration [2004] FCAFC 10 at [11], QAAT v Minister for Immigration (2005) 149 FCR 299, 311, Abebe v Commonwealth (1999) 197 CLR 510 at [197], SZMUF v Minister for Immigration [2009] FCA 182 at [14] and SZTEX v Minister for Immigration [2014] FCA 1269 at [19].

    Ground 2

32. In respect of ground 2, when asked to identify the legal error on the part of the Authority, the applicant reiterated that he was not happy with the Authority's decision.  I make the same observations as I did in respect of merits review at [28] to [29] above. 

    Ground 3

33. In each of grounds 3 and 4, the applicant alleges that the Authority failed to take into account a relevant consideration.  In respect of ground 3, this is particularised by the applicant as being that the Authority failed to consider an imputed LTTE profile and/or his Tamil ethnicity.

34. The Court explained to the applicant that there is a difference between the Authority failing to consider a claim or failing to take into account a relevant consideration, and considering a claim but not accepting it.  The solicitor for the first respondent made helpful submissions during the course of the hearing in respect of this claim, including specifically that this is not a case where the Authority failed to consider the applicant's claims, but rather that the Authority, accepted the applicant's claims, as set out in the visa application and the applicant’s interview with delegate.  However, having regard to the applicant's profile and particular country information at the time that it made its decision, the Authority found that the applicant did not have a profile which would give rise to the requisite harm.

35. The Authority discusses the potential profile of the applicant as a Tamil from a former LTTE-controlled area and imputed political opinion at [22] to [36] (CB 198 to 201) of the reasons for decision.  The Authority took into account a number of changes that had occurred since the commencement of the Sirisena government, which included:

    (a)confidence-building measures for the Tamil community;

    (b)significant progress in relation to human rights and reconciliation (see CB 199 at [24]);

    (c)country information, which assessed that Sri Lankans of all backgrounds generally had a low risk of experiencing official discrimination (CB 199 at [25]);

    (d)that the monitoring and harassment of Tamils had decreased significantly under the Sirisena government (CB 199 to 200 at [27]); and

    (e)that coming from a former LTTE-controlled area or being Tamil no longer gave rise to protection claims generally (CB 200 at [30]).

1. The Authority found that, specifically in respect of the applicant, the basis for the conclusion that he would not be of interest on the basis of that profile included (CB 201 at [36]):

   (a)that the applicant had left Sri Lanka at the age of nine months of age, as such, he had never been an LTTE member; 

   (b)an acknowledgement that the applicant's brother had been an LTTE cadre from 1990, but had died in 1992;  

   (c)that although the applicant's father had been questioned in 2009, it was left to his father to return for questioning, which indicated a low level of interest in the father; and

   (d)that eight years had passed since that event by the time of the authority's decision.  

2. The first respondent submitted that the above-mentioned conclusions as to the applicant's profile and it not giving rise to the requisite harm, were open to the Tribunal.  I agree.  It is necessary at this juncture to again observe that the choice of country information, upon which parts of those findings were based, was open to the Authority and a matter entirely for it (see [31] above and the cases cited in footnote 4 thereto).

   Ground 4

3. In respect of ground 4, when asked to address that ground, the applicant again said that his complaint was that his claims had not been accepted by the Authority as giving rise to a fear of harm.  I am satisfied that the findings of the Authority in respect of the particulars to ground 4 were also open to it based on the material before it and its selection of country information.  

4. The applicant again made submissions about the Easter bombing which he had raised in respect of ground 1.  The applicant asked rhetorically in respect of the bomb blast:

   Why that happens on the Christian church, instead of happening on the Buddhist people, or Buddhist temple – any other places?[5] 

   [5] Transcript at T9.13 to 14

5. As addressed in respect of ground 1, it is not for this Court to consider claims of the applicant in relation to what he says may befall him in Sri Lanka, and to the extent that the alleged bombing of a Christian church at Easter some time ago in Sri Lanka is said by the applicant to be relevant to the Authority's findings about his own Christianity, I repeat the findings I made in respect of ground 1.

   CONCLUSION

6. For the foregoing reasons I am not satisfied that any of the grounds of the application give rise to a jurisdictional error.  Accordingly, the application must be dismissed.  I will so order.

   COSTS

7. Consequent upon the dismissal of the application, the solicitor for the first respondent seeks an order that the applicant pay some part of the first respondent's costs fixed in the sum of $7,800.  When asked to speak to the question of whether costs should follow the event and, if so, in what amount, the applicant said, "This is too much for me",[6] and asked if there was a different way he could pay. The Court explained to the applicant that he would receive correspondence from the first respondent's solicitors indicating with whom at the first respondent's Department the applicant could speak to discuss a potential reduction of the amount, time to pay and/or payment by instalments.

   [6] Transcript T10.31

8. In the present case, I am satisfied that costs should follow the event.  I am also satisfied that the amount sought is reasonable having regard to the nature of the matter, and that it represents a reasonable indemnity of the first respondent's costs in this matter.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       28 March 2025