HWL24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 782
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HWL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 782
File number(s): PEG 363 of 2024 Judgment of: JUDGE GERRARD Date of judgment: 30 May 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal had a proper basis to make adverse credibility findings – whether failure to consider relevant material – unreasonableness – whether denial of procedural fairness – whether the Tribunal misapplied ss 5J and 36(2)(aa) of the Act – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 36(2)(a), 36(2)(aa), 424, 424(1), 424(2), 424A, 425, 425(1), 425(2), 425A, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228
ETA067 v The Republic of Nauru (2018) 360 ALR 228
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Home Affairs (2019) 267 FCR 200
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 19 March 2025 Date of hearing: 9 April 2025 Applicant: Self-represented with the assistance of a Sinhalese interpreter Counsel for the First Respondent: Tareena Martin Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 363 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HWL24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application be dismissed.
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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (Subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
On 11 January 2018, the applicant first arrived in Australia on a visitor visa (CB 17). He is a Sinhalese Sri Lankan Catholic (CB 220).
On 5 April 2018, the applicant applied for the visa (CB 1-46). In that visa application, he claimed to have left Sri Lanka because, as a result of his involvement in politics and the Sri Lanka Podujana Peramuna (SLPP) party, he had received multiple threats, was assaulted and was deliberately hit by a car between August 2015 and January 2018 (CB 38-41). The applicant appointed a registered migration agent as his authorised representative (CB 47-49).
On 8 November 2021, the Department invited the applicant to attend an interview scheduled for 1 December 2021 (CB 75-77). The applicant attended the interview with his migration agent (CB 78).
On 8 December 2021, following the Departmental interview, the applicant, via his agent, provided written submissions in support of his application, as well as evidence of his political involvement (CB 78-105).
On 21 December 2021, a delegate of the Minister refused to grant the applicant the visa (CB 110-119). The delegate found that, whilst the applicant was a supporter of the SLPP, he has a relatively low political profile and had not come to the adverse attention of rival political supporters prior to his departure. Accordingly, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act).
On 21 December 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 120-128).
On 5 February 2024, the applicant’s representative confirmed they were no longer acting for the applicant and withdrew their representation (CB 137-139).
On 15 July 2024, the applicant provided identity documents in support of his review application, as well as further documents relating to his claims of political involvement (CB 147-197).
On 25 July 2024, the applicant was invited to attend a hearing scheduled for 3 September 2024 (CB 199-201).
On 1 August 2024, the applicant provided a Response to Hearing Invitation, an affidavit and other material to the Tribunal (CB 202-209). On 26 August 2024, the applicant again provided further documents in support of his review application (CB 210-212).
On 3 September 2024, the applicant attended the Tribunal hearing with the assistance of a Sinhalese interpreter (CB 213).
On 16 September 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 219-238).
On 2 October 2024, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by setting out the applicant’s departmental history (at [2]-[3]).
The Tribunal then set out the applicant’s protection claims as outlined in his protection visa application, the delegate’s decision record, and in a post-interview submission prepared by his former representative after his interview with the delegate, which is summarised as follows (at [4]) (without alteration):
•The applicant lived with his wife and 2 daughters in Sri Lanka. He engaged in political activities in addition to operating his businesses.
•In March 2014, the applicant supported the candidacy of his close friend who contested the provincial council election as a United National Party (UNP) candidate for Kalutara District. He supported his friend by raising funds, publishing newspaper advertisements, printing and distributing leaflets, and talking to people.
•In 2015, the applicant contested the parliamentary election in Sri Lanka as an independent candidate. He talked to people about the corruption within the government, a coalition of the UNP and Sri Lanka Freedom Party (SLFP), and the government’s indifferent attitude towards unreasonable taxation, corruption of officials, intimidation, expansion of drug trafficking, and rising costs of living.
•On 15 August 2015, while returning from a friend’s place, 2 unknown persons on motorbikes blocked the applicant’s car. The pillion rider came close and asked the applicant to put down the window and assaulted and threatened to kill him if he did not keep away from politics. The applicant could not identify the men as they were wearing full face helmets. The applicant made a complaint with the police on the same day. He went to a government hospital but did not feel safe and left the hospital later that day. The police did not take any action. The applicant’s mental health broke down and his business deteriorated.
•In November 2016, the Sri Lanka Podujana Peramuna (People’s Front) (SLPP) was launched, and the applicant decided to support the party in any way that he could.
•In September 2017 the applicant was hit by a car in Colombo, which fractured his leg. The applicant was convinced that he was targeted because of his support for the SLPP. The matter was reported to the police, but no action was taken by the police. The applicant decided to continue with his political activities and to contest the next election.
•On 4 January 2018, 2 sturdy looking men came to his house. The applicant was at home with his friend. His wife and children were not home at the time. The men threatened the applicant, telling him to keep away from politics or all his family would die. One of the men took out a pistol and pointed it at the applicant. He was told that this was the final warning and not to go to the police or he would be killed.
•The applicant decided not to report the matter to the police and to use his visitor visa for Australia and leave the country. He found a safe place for his family and departed Sri Lanka on 11 January 2018.
•After the applicant’s arrival in Australia, the situation in Sri Lanka worsened. Political killings became more frequent, and the government decided not to take any action. The applicant became fearful for his safety and decided to apply for a protection visa.
•The applicant fears harm for reasons of his political opinion and as a member of a particular social group, being the ‘political class in Sri Lanka’, membership of which includes ‘privileged and sometimes wealthy people who engage in politics’.
•The applicant is a successful businessman and ran for Parliament as an independent and has consistently campaigned for the SLPP since 2016. He will be harmed by opposition parties and those who benefit from the status quo, particularly given that the applicant was a keen campaigner on anticorruption issues.
•The applicant cannot move to another area as Sri Lanka is a very small country making it impossible for him to remain anonymous and undetected by his persecutors.
The Tribunal summarised the delegate’s decision in respect of these findings (at [7]-[12]).
The Tribunal then set out the procedural history of the applicant’s review application, confirming that the applicant applied for review on 21 December 2021 (at [13]).
The Tribunal confirmed that on 15 July 2024, the applicant provided the Tribunal with further documents, some of which were before the delegate, as follows (at [5], [15]):
•Written submissions prepared by the applicant’s former representative;
•A copy of the Gazette notification regarding the 2015 parliamentary election, noting the applicant as part of the ‘Independent Group 3’;
•A copy of a photograph with a notation ‘the former president Mr. Mahinda Rajapaksa's brother former minister Mr. Basil Rajapaksa’;
•Copies of photographs, election campaign flyers, information from the election office, and an election identity card (and English translation) in support of his claim that he contested the 2015 parliamentary election as an independent candidate;
•A copy of a police report dated 14 September 2015;
•A copy of a police complaint dated 28 September 2017;
•Copies of affidavits by the applicant and his friend regarding the 4 January 2018 incident;
•A copy of the applicant’s Sri Lankan passport (expired in 2010) with stamped pages showing his travel history; and
•A copy of the applicant’s Sri Lankan passport (expired in February 2024) and stamped pages showing prior visas and travel.
The Tribunal set out that, on 25 July 2024, the applicant was invited to a hearing and responded to confirm his attendance. He also provided the Tribunal with an affidavit dated 22 August 2024, which restated his claims raised before the delegate (at [16]). The Tribunal confirmed that the hearing was held in person at the Perth Registry on 3 September 2024, and that the applicant was unrepresented but assisted by a Sinhalese interpreter. The Tribunal was satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and present his claims (at [17]).
The Tribunal then set out the legislative criteria for the grant of a protection visa in s 36 of the Act, namely, the refugee and complementary protection criteria (at [19]-[23]). The Tribunal confirmed it also had regard to, in accordance with Ministerial Direction No. 84 under s 499 of the Act, the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Foreign Affairs and Trade (DFAT) to the extent that they were relevant (at [24]).
The Tribunal accepted that the applicant has not been involved with political groups in Australia or in Sri Lanka during the years that he has been residing in Australia (at [35]).
In respect of the timing of his departure, the Tribunal outlined that, in the applicant’s written evidence, he decided to leave Sri Lanka temporarily after the January 2018 incident. The applicant then confirmed at the hearing that he had a multiple entry visa to Australia that was granted around nine months prior to January 2018, and that he decided to use that visa to travel to Australia prior to its expiry (at [38]). The Tribunal put to the applicant that the timing of his departure from Sri Lanka prior to expiration of his visitor visa, and the delay in lodging his protection visa application, may cause the Tribunal to conclude that he does not have a genuine fear of being returned to Sri Lanka and that he applied for a protection visa to remain in Australia. The Tribunal confirmed that the applicant had no comments in this regard (at [41]).
When asked why he waited three months before applying for a protection visa, the applicant said he arrived in Australia with no intention to apply for protection and just sought to monitor the situation in Sri Lanka before deciding about his return. However, due to the threats he faced from “incidents that happened” between parties in Sri Lanka around the time of the provincial council election on 10 January 2018, he decided to apply for a protection visa. The Tribunal found the applicant’s evidence in this regard to be “vague” and “perplexing” (at [39]). When asked how he monitored the situation in Sri Lanka prior to applying for protection, he advised he was using his Sri Lankan mobile number at the time, so his political associates in Sri Lanka did not know he was in Australia and were giving him information via messages that there were assaults on party officers and ‘other commotions’. When requested to produce the messages, the applicant said he accidentally put his telephone in the washing machine and lost all the messages, and that he has had no contact with anyone in Sri Lanka about the political environment since making his protection visa application (at [40]).
The Tribunal found the applicant’s explanation about the delay in lodging his protection visa unsatisfactory. The Tribunal expressed its view that the applicant departed Sri Lanka when he did due to the imminent expiry of his visitor visa, and that he applied for a protection visa just prior to the expiration of his visitor visa because he wanted to remain in Australia and work (at [42]).
The Tribunal set out that the applicant has consistently claimed he fears returning to Sri Lanka because of his past political activities and incidents involving unknown people who he believes were from opposing political parties (at [43]). While the Tribunal found that the applicant’s evidence, for the purposes of his protection visa application, has been presented in a broadly consistent manner, the Tribunal found that the applicant has exaggerated his past political involvement profile to bolster his claims for protection. The Tribunal did not accept the claimed incidents of harm to be credible (at [44]).
The Tribunal set out the applicant’s claim that he supported the candidacy of his close friend and well-known politician who ran on behalf of the United National Party (UNP) in the March 2014 provincial council elections, that his friend did not win, and that the Sri Lanka Freedom Party (SLFP) came into power (at [45], [48]). The applicant claimed he was a member of the UNP and the SLFP, paid for their respective membership fees, and that he had a lot of politician friends (at [46]). However, the Tribunal confirmed that, when asked to provide evidence of his membership of these parties, the applicant responded in the negative (at [48]).
The Tribunal then set out the applicant’s claim that, after the 2014 election, he himself contested the 2015 parliamentary election as an independent (at [45], [48]-[49]). The applicant claimed he decided not to support the UNP and SLFP because they were corrupt and were attacking university students, but he was unable to articulate this claim with any further detail (at [50]). In his statement dated 22 August 2024, the applicant claimed that, during the 2015 election campaign, he actively spoke out about the jointly ruled UNP and SLFP government and received several threats against his life, and that on 15 August 2015, he was assaulted by unknown men which he reported to police (at [49], [51]). The Tribunal set out that the applicant speculated these men were from the SLFP but had no evidence to support this assertion (at [52]).
The Tribunal accepted, based on the documentary evidence provided, that the applicant joined an independent group running for parliament in August 2015, and as per his evidence, the party was unsuccessful in securing any seats in parliament (at [63]). However, the Tribunal was not satisfied that the applicant participated in politics, spoke against the ruling government, or spoke about corruption within the government after the 2015 election. The Tribunal was, accordingly, not satisfied that the applicant was an active political figure and actively spoke against the government as claimed (at [64]).
Ultimately, the Tribunal found the applicant’s evidence about his motivation for engaging in politics and supporting various political parties to be problematic, as the applicant was unable to provide any meaningful details about various party politics or his role within the parties (at [61]). However, whilst the Tribunal found aspects of his evidence confusing, such as his claim that he was previously a member of, and assisted, opposing political parties, the Tribunal accepted that the applicant had friends within the UNP and SLFP. The Tribunal also accepted that, as a businessman in the area, the applicant supported a friend during the March 2014 provincial election, but did not accept that he was an official member, or had any active role, within the UNP or SLFP (at [62]).
Whilst the Tribunal accepted that the applicant made financial donations to the SLPP from its inception in November 2016, it rejected that he was actively involved in the party and, on his own evidence, observed that he did not become a member of the party until days prior to his departure in January 2018. The Tribunal rejected that, as a mere supporter of this party, he faced any incidents or was attacked by members of the opposing parties (at [65]). Therefore, the Tribunal was not satisfied of the veracity of his claimed attacks (at [66]).
The Tribunal expressed concern about the authenticity of the Sri Lankan police documents and rejected the applicant’s assertion that the Sri Lankan police did not use letter heads. The Tribunal observed the lack of official details and found the applicant’s evidence about when or how he obtained the document, and why he obtained English translations in Sri Lanka, unconvincing. The Tribunal also did not consider the affidavits to be corroborative of his claim that two men threatened him at his home in January 2018. The Tribunal also had regard to country information which demonstrated the prevalence of document fraud in Sri Lanka (at [67]-[68]).
The Tribunal observed that the applicant’s family had not been approached or asked about his whereabouts since he departed in 2018, and his lack of engagement with any political activities or support to his political associates in Sri Lanka for over six years caused concern for the Tribunal about his claimed political profile and his assertions that he was part of the political class (at [69]-[70]).
While the Tribunal accepted that the applicant had some limited involvement in politics prior to his departure, it rejected that he was an official or active member of the UNP, SLFP or SLPP, that he offered parties continued or sustained support, or that he was perceived to have been part of the political class or of ‘privileged and sometimes wealthy’ people who engage in politics. The Tribunal also rejected that the applicant departed Sri Lanka for the reasons claimed, or that he applied for the visa in April 2018 because he was advised by his political associates that the situation in Sri Lanka was bad. The Tribunal considered that the applicant applied for the visa because he wanted to continue to remain in Australia to work. The Tribunal was also not satisfied that the applicant had a political profile of interest to members of opposing political parties, or anyone else, at the date of his departure in 2018 (at [73]-[75]).
Based on country information and the applicant’s own evidence, the Tribunal was also not satisfied that the applicant would engage in any political activities if returned to Sri Lanka, and even if he did, he would not face a real risk of serious harm upon return to Sri Lanka (at [76]-[82]). The Tribunal also considered there to be no more than a remote chance of him facing any issues that would amount to serious harm from Sri Lanka’s economic situation, his status as a returned asylum seeker, or his extended absence from Sri Lanka (at [83]-[89]).
The Tribunal therefore concluded that the applicant did not meet s 36(2)(a) of the Act (at [90]-[91]. Based on these findings, as well as a further finding that there was no real risk that he would be identified as a person of interest or be harmed during the investigation process at Colombo airport, the Tribunal also concluded that the applicant did not meet s 36(2)(aa) of the Act (at [92]-[97]).
The Tribunal affirmed the delegate’s decision (at [26], [98]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 2 October 2024 contains five grounds of review as follows (without alteration):
1.The Administrative Appeals Tribunal (AAT) made a jurisdictional error by making adverse credibility findings against the applicant without proper basis, particularly regarding:
a) The applicant’s involvement in the 2015 parliamentary elections as an independent candidate
b) The applicant’s support for and involvement with the Sri Lanka Podujana Peramuna (SLPP) party
c) The threats and assaults experienced by the applicant due to his political activities
2.Failure to Consider Relevant Material:
The AAT failed to give proper, genuine and realistic consideration to critical evidence provided by the applicant, including:
a) The Gazette notification confirming the applicant’s candidacy in the 2015 elections
b) Police reports and medical evidence related to assaults on the applicant
c) Photographic evidence of the applicant’s political activities, including the photo with Basil Rajapaksa
d) Affidavits from the applicant and witnesses regarding threats received
3.Unreasonable Findings:
The AAT’s findings were unreasonable or lacking an evident and intelligible justification, particularly:
a) The dismissal of the applicant’s claims of political involvement despite substantial documentary evidence
b) The conclusion that the applicant did not face a real chance of harm upon return to Sri Lanka, despite evidence of threats and assaults
4.Denial of Procedural Fairness:
The AAT failed to comply with the hearing rule of procedural fairness by:
a) Not providing the applicant with a reasonable opportunity to address adverse country information relied upon
b) Failing to put to the applicant critical issues or evidence that the Tribunal intended to rely upon in making adverse findings
5.Incorrect Application of Law:
The AAT erred in law by misapplying the test for well-founded fear of persecution under s5J of the Migration Act 1958, failing to properly consider the cumulative effect of the applicant’s experiences and the objective country information.
The applicant also filed an affidavit with that judicial review application on 2 October 2024, annexing a copy of the Tribunal’s decision. That affidavit further expands upon the grounds sought in the application.
The applicant appeared before the Court on 9 April 2025 without legal representation but with the assistance of a Sinhalese interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 2 October 2024 (the affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 240 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 19 March 2025.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to orally explain the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter on 9 April 2025, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28 (Djokovic); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court what he said the Tribunal did wrong.
Against this background, when asked at the hearing whether he prepared the application himself, the applicant confirmed that he received assistance from a lawyer in preparing his application. The Court then clarified with him that he understood the grounds advanced in his application.
CONSIDERATION
As outlined above, the application formally sets out five grounds. Noting the applicant was unrepresented in this matter, the Court endeavoured to interpret his grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
Ground one
Ground one contends that the Tribunal’s adverse credibility findings in relation to the applicant’s political involvement in 2015, and the alleged resulting threats and assaults, were made without a proper basis.
The applicant briefly expanded upon the ground sought in [13] of his affidavit, alleging that the Tribunal failed to make an intelligible and “evidence-based decision” particularly in relation to its assessment of the plausibility of his protection claims.
It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic at [33] and the cases cited therein).
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality as follows (at [131]):
…[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). The High Court further stated (at [135]):
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. […]
In the Court’s view, the Tribunal’s reasons clearly demonstrate they are founded upon a logical and probative basis. The Tribunal did not make any adverse credibility findings about the applicant’s involvement in the 2015 parliamentary elections as an independent candidate, and in fact, accepted this claim. The Tribunal also accepted that the applicant supported the SLPP but rejected that he was “actively involved” in the party, based on his own evidence that he only became a member days prior to his departure from Sri Lanka in January 2018. Based on its findings that he had not actively engaged in politics or had spoken out against the government after the 2015 elections, the Tribunal was not satisfied of the veracity of the claimed attacks and rejected that they had occurred. There was clearly a sound and cogent basis to this finding, and consequently, was a finding open to the Tribunal.
No jurisdictional error arises in respect of ground one.
Ground two
Ground two contends that the Tribunal failed to consider a range of the applicant’s claims and evidence.
In his affidavit, the applicant elaborated on this ground to allege that the Tribunal failed to properly consider the following aspects of his claims:
(a)His involvement as an independent candidate in the 2015 parliamentary elections, evidenced by the Gazette notification;
(b)The assaults and threats which occurred on 15 August 2015, evidenced by the police reports;
(c)His support for and involvement with the SLPP party from 2016 onwards, evidenced by the photographic evidence of him meeting Basil Rajapaksa;
(d)The car accident in September 2017, which he believed to be a targeted attack due to his political involvement; and
(e)The home invasion and death threats received on 4 January 2018, evidenced by affidavits from himself and a witness.
It may be inferred that the Tribunal has failed to consider a claim if it does not mention it in its reasons (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [47] (Applicant WAEE)). However, the reasons are required to be read as a whole and they may demonstrate that a claim has been considered even if it is not expressly mentioned (Applicant WAEE at [47]).
At the hearing, the applicant submitted that, despite the evidence he provided and his request for the Tribunal to “check on the public sources”, the Tribunal did not believe that he ran as an independent candidate in the 2015 election. The applicant also contended that, after the assault on 15 August 2015, he was admitted to a public hospital where his life was threatened, so he was then admitted to a private hospital for his safety, but that the Tribunal did not accept that he was admitted to hospital at all.
It is clear to the Court that the Tribunal set out the applicant’s claims in great detail. The Tribunal’s reasons show that it expressly identified and properly engaged with the applicant’s gazette notification about the 2015 parliamentary election, his police reports, photographs, affidavits, the claimed car accident in September 2017, and the claimed home invasion in January 2018. The Court accepts the Minister’s submissions that although the applicant provided a “medico-legal examination form”, the Tribunal’s failure to reference this in its findings does not give rise to any error because it already rejected the underlying claim of the attack occurring, based on its findings about his political profile and limited participation in politics, rejected that he was targeted by unknown people speculated to be members of opposing parties, and rejected that the claimed attacks had occurred.
No jurisdictional error arises in respect of ground two.
Ground three
Ground three contends that the Tribunal’s findings in respect of the applicant’s claims of political involvement, and the real chance of harm upon return to Sri Lanka, were unreasonable or lacked an evident and intelligible justification.
It has long been established that the consideration of a representation or submission requires an “active intellectual process” (see Tickner v Chapman (1995) 57 FCR 451 (Tickner) at 495. In Tickner, Kiefel J (as her Honour then was) said that consideration requires a decision maker to “have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them” (at [40]). A mere summary cannot suffice and the decision maker is required to form his own view.
In Singh v Minister for Home Affairs (2019) 267 FCR 200, Reeves, O’Callaghan and Thawley JJ (at [34]) held that a Tribunal, whose task is to review, may commit jurisdictional error by failing to engage in an active intellectual process or give proper, genuine and realistic consideration to:
(a)A “substantial, clearly articulated argument relying upon established facts” (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed);
(b)A claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ); or
(c)A matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” (citing ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ).
In the applicant’s affidavit, at paragraphs [8], [9] and [13], he contended that the Tribunal’s finding that he does not have a profile of interest to the Sri Lankan authorities or political opponents was not supported by the evidence before it. He contended that, as a result, the Tribunal failed to make an intelligible and “evidence-based decision”.
In his affidavit, the applicant claimed that he was unjustly treated, and that his application was refused as a result of the Tribunal’s failure to properly turn its mind to the police reports, election material, and an affidavit detailing death threats he received in 2018.
At the hearing, the applicant re-iterated that the decision was irrational because the Tribunal did not accept the veracity of his evidence and did not independently check the veracity of his claims.
In respect of the police documents, the Tribunal did not dismiss the applicant’s police documents as alleged by the applicant, but rather, its reasons demonstrate that it had concerns with the authenticity of those documents. These particular concerns included the lack of official identifying details, the absence of a police letterhead, his “unconvincing” explanations about how or when he obtained them, and why he had obtained English translations in Sri Lanka. The Tribunal also relied on country information indicating that document fraud in Sri Lanka was common and that asylum seekers from Sri Lanka had presented fraudulent documents to support their claims. The Tribunal’s concerns with these documents clearly extended beyond a “fleeting reference” to a proposition that document fraud could occur in Sri Lanka.
In respect of the election material, the Tribunal did not dismiss the applicant’s election material but rather identified them and accepted that he had joined an independent group and unsuccessfully ran for parliament in August 2015. The Tribunal also did not dismiss the supporting affidavits but considered them not to be corroborative of the claimed incident of death threats on 4 January 2018 because they were prepared after the event and were in almost identical terms to each other.
The Minister submitted, and the Court agrees, that the Tribunal’s findings that the applicant was not an active political figure, especially after the 2015 elections, were open to it. Based on its findings, it was also open to the Tribunal to reject that the applicant was ever attacked because of his claimed political activity, or that he would be of any interest to the authorities or members of opposing political parties. The Tribunal’s conclusion that the applicant did not face a real chance or real risk of any harm on these bases cannot be said to be unreasonable in light of these findings. The Tribunal gave cogent reasons based on the evidence, claims and country information before it. There is nothing to suggest that a reasonable decision maker could not have come to the same conclusion based on the same material before it.
There was no irrationality evident in any of the findings reached by the Tribunal. The Tribunal was not required to uncritically accept any evidence of the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Further, it was not incumbent upon the Tribunal to conduct any independent enquiry to satisfy itself as to the veracity of the applicant’s claims. It clearly engaged with each of the claims before it.
No jurisdictional error arises in respect of ground three.
Ground four
Ground four contends that the Tribunal did not award the applicant procedural fairness by failing to put to him adverse country information and evidence it relied upon.
In the applicant’s affidavit, and further echoed in oral submissions, he submitted that the Tribunal breached a statutory requirement by failing to comply with s 425 of the Act by not giving him an opportunity to respond to country information which was adverse to his claims. The applicant also alleged that he repeatedly told the Tribunal he cannot return to Sri Lanka, to which the Tribunal insisted that he could return.
Section 424 of the Act (as it then was) relevantly sets out that:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
The Tribunal is required to give an applicant particulars of information adverse to their review and invite them to respond as follows:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
Section 425 of the Act (as it then was) sets out that the Tribunal must also invite an applicant to appear before it:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
The Court agrees with the Minister’s submissions that the Tribunal complied with its exhaustive procedural fairness obligations in Division 4 of Part 7 of the Act. On 9 July 2024, the Tribunal exercised its discretion under s 424(2) to invite the applicant to provide information in a pre-hearing information form, which he did on 15 July 2024. It also invited him to attend a hearing, in compliance with ss 425 and 425A, which he attended on 3 September 2024 with the assistance of a Sinhalese interpreter. There was no information that the Tribunal was required to put to the applicant for comment or response under s 424A, because its decision was made based on the information he had provided to the Department, his documentary and oral evidence on review, and country information, all of which fell within the exceptions of the Act.
The applicant further alleged bias in the Tribunal hearing process, at [11] of his affidavit, which denied him procedural fairness by being frequently interrupted and not allowing him to fully explain his circumstances, dismissing his evidence without proper consideration, and relying on outdated or irrelevant country information without giving him an opportunity to comment.
An assertion of bias is a serious allegation that must be distinctly made and clearly proven by evidence (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). There is no evidence before the Court to support an allegation that the Tribunal’s decision was affected by either actual or apprehended bias. The Tribunal also did not rely on outdated country information, and in fact, had regard to the latest DFAT country information report on Sri Lanka dated 2 May 2024 as required (citing Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431). In light of this, the Court finds that there is nothing to demonstrate that the applicant was denied a real and meaningful opportunity to present his claims and evidence at hearing.
No jurisdictional error arises in respect of ground four.
Ground five
Ground five contends that the Tribunal misapplied the test in ss 5J and 36(2)(aa) of the Act and failed to properly consider the cumulative effect of his experiences in respect of country information.
Section 5J of the Act sets out the following:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
The complementary protection criterion in s 36(2)(aa) of the Act relevantly sets out that:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm…
The Court agrees with the Minister’s submissions that the Tribunal’s reasons demonstrate that it correctly applied the relevant test under ss 5J and 36 of the Act. There was no obligation for the Tribunal to make a cumulative assessment of the applicant’s claims because the claims which related to a fear of harm had been individually rejected as a factual matter, or had been the subject of findings that they did not or would not lead to ongoing problems for the applicant. Further, the Tribunal’s reasons demonstrate that it plainly had regard to the applicant’s circumstances before finding there to be a “no more than remote” chance that he would face any issues amounting to serious harm due to his status as a failed asylum seeker. Earlier in its reasons, it had also already rejected that he was actively involved in politics after the 2015 elections or spoke out against the government, and the Tribunal was not required to remake its findings on those claims for the purposes of assessing the risk due to his failed asylum status.
No jurisdictional error arises in respect of ground five.
Duty to enquire
At the hearing, an overarching complaint of the applicant was that if the Tribunal did not believe any of his claims or evidence, it should have independently conducted enquiries to ascertain the veracity of those claims or evidence. This is, respectfully, a misguided submission.
It is true that the Tribunal has a discretionary power to seek information that it considers may be relevant to the review, however there is no duty placed upon the Tribunal to do so. In particular, whilst a Tribunal may be expected to make an obvious enquiry about a critical issue, it is not required to make inquiries for further information and documents (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [18]-[25]). It was the applicant’s responsibility to put all the evidence forward that he wished to rely upon and there was no duty on the Tribunal to seek out further corroborative evidence
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 30 May 2025
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