FFQ17 v Minister for Immigration and Border Protection
[2025] FCA 158
•4 March 2025
FEDERAL COURT OF AUSTRALIA
FFQ17 v Minister for Immigration and Border Protection [2025] FCA 158
Appeal from: FFQ17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 46 File number: VID 120 of 2023 Judgment of: STEWART J Date of judgment: 4 March 2025 Catchwords: MIGRATION – protection visa application – refused – whether particulars, claims or evidence overlooked – no error – appeal dismissed Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 46A(1), 65 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 4 March 2025 Counsel for the Appellant: G Foster Solicitor for the Appellant: Sentil Solicitor Solicitor for the Respondents: M Plitsch of Australian Government Solicitor ORDERS
VID 120 of 2023 BETWEEN: FFQ17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
The appellant is a 34-year-old Sri Lankan Tamil, born in northern Sri Lanka. He departed Sri Lanka in August 2012 and arrived in Australia by boat in September 2012 as an “unauthorised maritime arrival”.
In November 2013, the appellant made an application for a protection visa that was invalid by reason of s 46A(1) of the Migration Act 1958 (Cth). Later, in August 2016, he made a valid application for a Safe Haven enterprise (subclass 790) visa, a form of protection visa. Broadly stated, the appellant claims to have a well-founded fear of persecution on account of having suffered beatings, detention and threats from the Sri Lankan Army (SLA) because they believe, or suspect, that he is involved with the Liberation Tigers of Tamil Eelam (LTTE), although he denies such involvement.
In February 2017, a delegate of the Minister for Immigration and Border Protection for the purposes of s 65 of the Act refused the appellant’s application for a protection visa. As a “fast track reviewable decision” under Pt 7AA of the Act (as it then was), the refusal decision was automatically referred to the Immigration Assessment Authority for review.
On 8 November 2017, the Authority affirmed the decision of the delegate not to grant the appellant a protection visa. That was essentially on the ground that following the end of the civil war in Sri Lanka in 2009, the appellant was not detained or particularly targeted for attention by the SLA – any adverse treatment that the appellant suffered in that period was faced by Tamils in the north and east of the country generally. The Authority found that the appellant did not face a real chance or risk of serious or significant harm by virtue of being a young Tamil male from the north of Sri Lanka without actual or imputed links to the LTTE on the basis of country information indicating that the treatment of Tamils, specifically those without any actual or imputed connection with the LTTE or Tamil separatism, had improved considerably since the war and its immediate aftermath.
The appellant then sought judicial review of the decision of the Authority in the Federal Circuit and Family Court of Australia, Division 2. The appellant was legally represented before the Division 2 Court. Four grounds of review were asserted, all of which failed. On 2 February 2023, the appellant’s judicial review application was dismissed with costs.
The appellant, unrepresented, then filed a notice of appeal against the decision of the Division 2 Court asserting essentially the same grounds as had been asserted before the primary judge. The appellant later obtained new legal representation. He now abandons the initial four grounds of appeal and seeks leave to rely on two new grounds, neither of which corresponds to any review ground that was asserted before the primary judge. The Minister opposes leave being granted. The Authority has, in customary fashion, filed a submitting notice save as to costs. Other considerations aside, it is common ground that if the new grounds have insufficient prospects of success, then leave to run them should be refused.
For convenience, I will refer to the appellant’s proposed grounds of appeal simply as the grounds of appeal without overlooking the fact that the appellant requires leave to advance them. The grounds overlap. Omitting the particulars which are common to both grounds, they are put as follows:
5. The IAA erred when it failed to consider relevant evidence that the Applicant was beaten, threatened, had a gun put to his head after 2009, in coming to the conclusion that the IAA did not accept the applicant was detained, taken to the army base or elsewhere, beaten or otherwise seriously harmed outside of his home after the war ended or has an adverse profile, failed to engage in intellectual process, made unreasonable, illogical or irrational findings, and thereby committed jurisdictional error.
6. The IAA erred when it failed to consider a claim that the Applicant was beaten, threatened, and had a gun put to his head after 2009 ‘the ground’, thereby committing jurisdictional error by failing to constructively exercise its jurisdiction or coming to unreasonable irrational or illogical decisions.
The critical issue raised by both grounds is the Authority’s treatment of the appellant’s evidence of what he experienced at the hands of SLA, the Criminal Investigation Department (CID) or other government agencies after the end of the civil war in 2009.
The appellant submits that in his interview by the delegate he said that after 2009 the SLA still thought that he was in the LTTE which is why they caught and beat him, and that the reference to being caught and beaten was to the period after 2009.
The appellant further submits that in his interview by the delegate he said that although he was taken to the army camp for the last time in 2009, the SLA still came and intimidated him by “cuffing” him and threatening they would shoot him, the last time being in 2011. He said that they intimidated him one week before he came to Australia and that he maintained his fears of being killed. He said that the SLA put a rifle to his head after the last time he was beaten, whereafter his father sent him to Australia. Those matters are borne out by the transcript of the interview.
The Authority accepted in its record of decision that although the appellant was not detained after the end of the civil war, the SLA would come to his family’s home and harass and question him. Also, on one occasion he was threatened with a gun. However, the Authority did “not accept that he was detained, taken to the army base or elsewhere, beaten or otherwise seriously harmed outside of his home after the war was ended”. The Authority found that the appellant had no adverse profile and considered that any questioning and monitoring, which it accepted involved harassment and threats, was undertaken in the context of routine monitoring and harassment of Tamils that occurred in the north and east of the country during the post-war period. The Authority concluded that the appellant’s claim that the CID or the SLA continued to visit his family and ask about his whereabouts was an exaggeration.
The Authority accepted that after the war, the SLA would on occasion come to the appellant’s house, question and harass him. It accepted that on at least one occasion, they threatened him with a gun. The Authority concluded that the treatment he experienced was significant, but that it reduced in severity and frequency following the end of the war.
Flowing from that, two matters are evident. Firstly, the Authority took account of the post-2009 matters identified by the appellant and that the submission on behalf of the appellant that the Authority “did not specifically comment upon the post 2009 claims which were clearly raised in the material” is wrong and must be rejected. Secondly, there is no material error in the reasoning of the Authority in relation to those matters. It was within the jurisdiction of the authority to assess the evidence and to reach conclusions on it. It did not overlook any particular claim. There is no evident error, let alone jurisdictional error, in the reasoning of the Authority.
In the circumstances, the proposed grounds of appeal 5 and 6 have no prospects of success. The appellant should be denied leave to rely on those grounds in the appeal.
Since the other grounds of appeal were abandoned, the appeal must be dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 4 March 2025
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