FAA18 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 956

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FAA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 956  

File number(s):

SYG 2725 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

20 June 2025

Catchwords:

MIGRATION - Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa – grounds of review invite the Court to undertake impermissible merits review – allegation of illogicality, unreasonableness in the decision under review – no breach of s 473 DD of the Migration Act 1958 (Cth) – no jurisdictional error established – application dismissed with costs

Legislation:

 Migration Act 1958 (Cth) ss 473CA, 473DB, 473DC(1), 473DD, 473DE(3)(a)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

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

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

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Division:

Division 2 General Federal Law

Number of paragraphs:

46

Date of hearing:

12 June 2025

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Schultz (Mills Oakley)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2725 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAA18
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	20 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to read ‘Minister for Immigration and Citizenship’.

2.The Application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,200.00.

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 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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the (then) Immigration Assessment Authority (“the Authority”), now known as the Administrative Review Tribunal, dated 11 September 2018 affirming a decision of the delegate of the first respondent to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa (“SHEV”).

2. For the reasons set out below, the application must be dismissed.

   BACKGROUND

3. The applicant is a citizen of Sri Lanka.

4. On 17 August 2012, the applicant arrived in Australia as an unauthorised maritime arrival. In late 2015, the applicant lodged an application for the SHEV.

5. On 2 May 2018, the delegate refused to grant the applicant a SHEV. The matter was referred to the Authority for review.

   THE AUTHORITY’S DECISION

6. The Authority took into account new information, first being a Sri Lankan country report from the Department of Foreign Affairs and Trade (DFAT) published on 23 May 2018 (DFAT Report. The report was published after the delegate’s decision. The Tribunal considered there were exceptional circumstances to warrant the information being received.

7. The Authority also received and took regard of submissions received from the applicant’s representative on 28 May 2018.

8. The applicant’s claims for protection are summarised at [6], as follows:

   •The applicant is a Tamil male of Hindu faith.

   •He grew up in Liberation Tigers of Tamil Eelam (LTTE) controlled area of Trincomalee and on at least one occasion prior to 2006, his grandparents provided meals to LTTE cadre.

   •In 2006, in an attempt to avoid recruitment by the LTTE and the dangers of the civil war, the applicant fled Sri Lanka with his aunty and resided in a refugee camp in Tamil Nadu, India. Later in 2006, his parents, grandparents and siblings joined him.

   •His family had been told it was safe to return to Sri Lanka in April 2008 and he returned with his grandparents, parents and siblings.

   •In 2009 the applicant was stopped frequently by the Sri Lankan Army (SLA) as he travelled between work, study and home. The SLA officers imputed him with LTTE involvement and would question him about his activities.

   •Eelam People's Democratic Party (EPDP) members would stop the applicant and visit him at his home in an attempt to coerce him into becoming a member of the group. On account of the harassment from the SLA and EPDP the applicant discontinued private tuition and limited his travel.

   •In 2010, he was forced to perform labour for a paramilitary group called Karuna and intimidated to become a member of their group.

   •In 2010, the applicant was forced to assist the Member of Parliament, known as Punchenelame, in his political campaign. He was required to attend campaign meetings and distribute flyers and information.

   •The applicant travelled to India with his aunty in February 2011 for a few weeks break from the pressures of the political campaign.

   •After returning from India, the applicant began assisting in the political campaign for two Tamil National Alliance (TNA) candidates who contested an election held in July 2011.

   •After the elections Punchenelame supporters came to his house and threatened to kill or abduct the applicant on account of his TNA campaign support.

   •His uncle had lost his leg while fishing and in early 2012. He was imputed with LTTE membership on account of this injury. He was abducted and held for twenty days, at which time the family made a complaint to a human rights group and he was released without charge.

   •The applicant failed in fighting off a SLA officer in April 2012, who sexually assaulted his aunty. A few weeks later, SLA officers came to his house and warned him that they would sexually assault him also. A week later, the SLA officers came and took him to the army camp and sexually assaulted him.

   •He stayed with family members until he departed Sri Lanka illegally by boat with the assistance of people smugglers in July 2012.

   •He attended a Remembrance Day event in Australia.

9. At [8], the Authority accepted that the applicant experienced verbal abuse from Sinhalese Buddhists after attending a temple.

10. The Authority considered it plausible that the applicants grandparents provided food to LTTE members prior to 2006, however it noted that the applicant did not separately claim that his family members were adversely affected by this provision of food. Thus, the activity of the grandparents did not impute the applicant with a link to the LTTE.

11. At [10], the Authority accepted that the applicant fled Sri Lanka for India in 2006 and subsequently returned in 2008, when his family considered it safe. The Authority was satisfied with the applicant’s evidence that after returning to Sri Lanka, he was involved in education and part-time employment [11].

12. The applicant claimed that in 2009, he sold and delivered kerosene, and he was targeted by the SLA as they would stop and question what he was doing with the oil. Whilst the Authority was satisfied the applicant was on occasions stopped and questioned by authorities, it did not believe that the applicant was specifically targeted and apart from enquiries and initial suspicions that authorities might have held, his occupation would not have otherwise imputed him with an adverse profile [12].

13. The Authority accepted that the applicant experienced harassment, intimidation and physical mistreatment from EPDP members when passing through checkpoints, however, were not satisfied that the applicant was persistently targeted because the EPDP wanted to grow their membership [13].

14. The Authority accepted that the applicant withdrew from private education due to harassment and intimidation received from the SLA and EPDP at different checkpoints following the end of the civil conflict [14].

15. The Authority was unconvinced by the applicant’s responses and descriptions to the delegate, when asked to further describe incidents of harassment he claimed occurred with members of the Karuna group. The Authority was not satisfied the applicant’s recount, demonstrated a genuine, personal experience nor that he was targeted for recruitment by the Karuna group or subjected to forced labour by them [15].

16. The applicant claimed that he had unwillingly assisted the United People’s Freedom Alliance (UPFA) party in its campaigning duties. The Authority accepted this evidence, however was not satisfied that he was forced to perform these duties ([16]). In reference to evidence that after the election in 2011 he was approached by members from the UPFA party, the Authority did not accept that the applicant was either approached or threatened.

17. The Authority was not willing to accept the applicant held a significant responsibility as a political campaigner in 2011, finding that the applicant would have participated in only low-level political activities [17].

18. The Authority did not accept that the applicant’s uncle suffered from a lost limb due to an abduction, as the applicant detailed in his written statement that this event took place three years after the war. The Authority was prepared to accept that the applicant’s uncle had been a casualty of the civil conflict and lost his leg to a related injury [19].

19. At [20]-[22], the Authority discusses the applicant’s evidence regarding incidents of sexual assault perpetrated by SLA officers on the applicant and his aunt. The Authority was willing to accept that the applicant and his aunt were sexually assaulted. It did not agree with the argument, posed by the applicant’s representative, that the applicant was targeted because his family were suspected of providing assistance to the LTTE. The Authority considered the attack on the applicants’ aunt to have been opportunistic on the part of the officers, and the applicant’s own attacks were consequences of him having witnessed the aunt’s attack.

20. In the interview with the delegate, the applicant stated that he had not been involved in any protests, however he had attended a commemoration day in Australia and assisted with decorations and participated in a symbolic gesture. The Authority accepted this. 

21. In considering all of the applicant’s claims and making a refugee assessment, the Authority made the following findings:

    ·The Authority accepted that the applicant was a victim of sexual assault in 2012, however it did not accept that those responsible for the assault had an ongoing interest in pursuing him or that he was targeted because his family were suspected of assisting the LTTE ([27]).

    ·The applicant, as an ordinary Hindu Tamil from the Eastern Province, will not face restrictions to practicing his faith or that he faces a real chance of suffering any harm should he return to Sri Lanka [28].

    ·At [30], the Authority was satisfied the applicant would not be viewed as someone who had played a significant role in Tamil separatism or perceived as a person who is a threat to the State because of these activities, or being a Tamil who spent time in a former LTTE controlled area.

    ·The applicant’s prior activities would not result in him being with imputed with an anti-government political opinion. In the event the applicant wished to pursue political activities in Sri Lanka,  the Authority was satisfied he would be free to do so.

    ·In light of information discussed at [32] from country information reports, the Authority was satisfied that if the applicant were to return to Sri Lanka as a Tamil male from the Eastern province he would not be identified as pro-separatist or a person with any LTTE connections or a person of adverse interest ([33]).

    ·The Authority was not satisfied that the applicant would be denied employment or that his capacity to subsist would be threatened. ([36]).

    ·On account of country information that suggested failed asylum seekers would face social stigma from social members, the Authority was not satisfied that this would amount to serious harm on return to Sri Lanka.

    ·It is accepted that on account of the applicant’s illegal departure in 2012 he may be questioned, detained and charged at the airport in Sri Lanka and depending on the availability of a magistrate he may be held in an airport holding cell for two days. There was no evidence before the Tribunal to suggest that the applicant could not secure bail or pay a fine([40]).

22. In light of the considerations it made, the Authority affirmed the decision of the delegate.

    GROUNDS OF JUDICIAL REVIEW

23. The applicant’s Initiating Application to the Court is confusing, as it contains two different copies of page three, which set out slightly different grounds of judicial review. The Court has consolidated these grounds as follows (errors as in the original):

    1.The IAA not accepted his claims, in the circumstance, in relation to the claims. which the IAA did not accept, it was necessary for the IAA to take into account the possibility that those events claimed by the applicant occurred. The IAA did not take into account this possibility. This was jurisdictional error.

    2.The Applicant family had long involvement with LTTE, his grand parents regularly supply food for the LTTE. They try to recruit him , but he managed to escape to India with his Aunty. He spend nearly 2years in Indian refugee camp. IAA acted unreasonably in this matter and not giving the applicant an opportunity.

    3.The IAA with reference to s473dd of the migration act found at (9) that it was not satisfied there were exceptional circumstances to justify The IAA considering a submission and country information the applicant provided to the IAA on torture during pre trail detention or as part of criminal investigations. The IAA committed a jurisdictional error in making this finding.

    4.Applicant facing real danger of his livelihood if he return back to Sri Lanka.

    5.The LTTE constantly looking for him. LTTE cadres still loose in the society, applicant fear they are a threat of his life. The IAA did not take into account all this seriously.

    THE APPLICANT’S SUBMISSIONS

24. The applicant appeared before the Court unrepresented.  The applicant was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

25. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

26. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that he did not know if there were legal errors in the decision, however to the best of his knowledge there were some mistakes.

27. The applicant claimed that he was sexually assaulted because he was a Tamil. The applicant was taken, tortured and then released. The applicant further claimed that safety in his country could not be guaranteed.

28. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that there were still problems in Sri Lanka, and there are Sinhalese people who engage in torture.

    THE FIRST RESPONDENT’S SUBMISSIONS

29. As to grounds one, two, four and five, the first respondent submits that these grounds simply invite the Court to undertake impermissible merits review and cannot succeed on that basis: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at per Brennan CJ, Toohey, McHugh and Gummow JJ [30]-[31].

30. Ground three, as pleaded by the applicant, is unclear. The Tribunal did not make reference to s 473DD of the Migration Act 1958 (Cth) (“the Act”) at [9] of the decision record. In making its findings at [9], the Tribunal did not rely on any new information in that paragraph.

31. There is nothing contained in this matter which could give rise to an argument that the Tribunal failed to properly construe s 473DD or that any error in the way in which the Tribunal treated new information occurred.

32. The Tribunal had before it, two new documents. As to the first of the documents, the DFAT Report, with reference to s 473DD, the Tribunal has different obligations when it chooses to obtain new information itself and the provisions of s 473DD(b) do not apply: CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 per Derrington J at [33]. Pursuant to s 473DC(1) of the Act, the Tribunal was entitled to obtain country information for itself and was not, as guided by s 473DE(3)(a) of the Act required to put the DFAT country information report to the applicant for comment: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 per Thawley J at [53].)

33. As for the second new document before the Tribunal, being submissions from the applicant, the arguments mainly addressed information that was before the delegate, and in this regard, they were limited in argument. The Tribunal was not required to regard it as new information: ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 per Wigney J at [74].

34. Ground three does not reveal any jurisdictional error on the part of the Authority.

    CONSIDERATION

35. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

36. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

37. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

38. It is well settled that the country information and the weight it gives to that information is a matter for the Authority: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.

1. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Authority to reach the requisite state of satisfaction.

   Grounds One, Two, Four and Five

2. The Court accepts the first respondent’s submission that grounds one, two, four and five express vehement disagreement with the factual conclusions arrived at by the Authority and simply invite the Court to undertake impermissible merits review.

3. The Court is satisfied that the conclusions arrived at by the Authority were available to it based on the evidence that was before it and for the reasons it gave. There was no illogicality, irrationality, or legal unreasonableness in the findings of the Authority. Given the firm factual findings arrived at by the Authority, there was no requirement for them to consider the possibility of alternative factual finding on the basis of the possibility that the Authority was wrong in the conclusions arrived at.

4. The Court is unable to ascertain what opportunity the applicant was not given, as appears to be the case in the allegation of ground two. As this was a Part 7AA fast track review, it was carried out in accordance with the requirements of that part of the Act. In accordance with s 473DB, the review was carried out based on the material referred to it under s 473CA without interviewing the referred applicant or holding a hearing.

   Ground Three

5. Ground three is misconceived. At [4], the Authority set out that it had obtained the most recent country information report for Sri Lanka, which was published after the delegate’s decision. As it was generic information only and not specific to the applicant, there was no requirement for the Authority to provide that information to the applicant for comment.

6. Further, at [5], the Authority noted it had received a submission from the applicant’s representative which engaged in argument with the delegate’s decision based on information that was before the delegate. The Authority had regard to these arguments. The Court is satisfied that there was no breach of the requirements of s 473DD of the Act. Ground three has no merit.

7. As the applicant is unrepresented, the Court has perused the Authority’s decision record together with the material contained in the relevant Court Book. The Court is unable to ascertain any unarticulated jurisdictional error.

   DETERMINATION

8. As none of the grounds of judicial review have any merit, the Application must be dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       20 June 2025