ADU19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2098

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. Before the Court is an application for judicial review of a decision of the Tribunal (Tribunal) made on 17 December 2018, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Protection (Class XA) visa (visa).

1. The following background to this matter is derived from the submissions of the first respondent and, unless otherwise indicated, does not appear to be in dispute.
2. The applicant is a citizen of Sri Lanka, who arrived in Australia on 10 August 2012 as an unauthorised maritime arrival. The applicant applied for the visa on 11 December 2012 (Court Book (CB) 37 to 103).
3. On 13 June 2013, the delegate interviewed the applicant. On 9 January 2014, the delegate refused to grant the applicant a protection visa (CB 117 to 146). On 13 May 2015, the applicant attended a hearing before the Tribunal. On 31 May 2015, the Tribunal affirmed the delegate's decision (CB 258 to 291). On 4 April 2016, the (then) Federal Circuit Court of Australia (FCCA) made orders, by consent, remitting the matter to the Tribunal for redetermination according to law (CB 292 to 293).
4. On 2 September 2016, the applicant attended a second hearing before the Tribunal. On 12 January 2017, the Tribunal again affirmed the decision under review (CB 362 to 382). On 25 May 2017, the FCCA again made orders, by consent, remitting the matter to the Tribunal for redetermination according to law (CB 383 to 384).
5. On 13 February 2018, the applicant attended a third hearing before the Tribunal (CB 417 to 419). On 17 December 2018, the Tribunal affirmed the decision under review for a third time (CB 476 to 507).

1. The applicant claims to fear harm by the Sri Lankan Army or (other authorities) due to his perceived association with the Liberation Tigers of Tamil Eelam (LTTE), his Tamil ethnicity, his Catholic religion, and his illegal departure and status as a failed asylum seeker.
2. In support of those claims, the applicant recounted that his family home was destroyed in 1995 by the Sri Lankan army in an aerial bombardment, during which attack he suffered injuries which resulted in his having permanent scars. The applicant claimed to have been caught by the army after breaching a curfew one evening and that he was held overnight and questioned about his scars. He claimed to face consistent persecution from the Sri Lankan army and other authorities. He also claimed that his brother had been forced to dig bunkers and had undergone training by the LTTE in 2005, and the applicant feared harm as a result.

1. The Tribunal set out the background, procedural history, relevant material, and the applicant's claims in detail (CB 477 to 480 at [1] to [35]). The Tribunal accepted the applicant was a Catholic Tamil from Jaffna (CB 480 to 481 at [36], [38] and [40]). The Tribunal referred to the applicant having 'consistently claimed' that his family were harassed and searched and that he was detained for a night for being out after curfew (CB 481 at [44] and [46]). The Tribunal also referred to the applicant's claims about being questioned at checkpoints (CB 482 at [52] to [55]).
2. The Tribunal accepted the applicant's brother was forced to undergo training and dig bunkers for the LTTE in 2005. However, the Tribunal did not accept he was required to report or that he was of any ongoing interest (CB 485 at [73] and [77] to [81]). The Tribunal accepted the applicant had visible scarring (CB 489 at [95]), however (by reference to country information) the Tribunal found this did not give rise to imputed associations with the LTTE (CB 486 to 490 at [82], [95] and [101] to [102]). The Tribunal accepted the applicant had a friend who was detained as a failed asylum seeker, but found this was not relevant to his claims (CB 490 at [107]). The Tribunal referred to media reports about a box containing explosives being discovered in the Jaffna Sea in 2018, but did not accept those reports had any bearing on the applicant's protection claims (CB 492 at [117]). The Tribunal accepted the applicant left Sri Lanka without a passport from a non-approved port (CB 492 at [118]).
3. Having regard to its anterior factual findings, the Tribunal rejected the applicant's claims to have a well-founded fear of harm for any of the reasons he claimed (CB 492 at [120]). The Tribunal made specific findings that the applicant did not face such harm because of his Tamil ethnicity (CB 492 at [123]), his Catholic religion (CB 496 at [139]), any perceived association with the LTTE (CB 496 to 497 at [140] to [149]), or his illegal departure and status as a failed asylum seeker (CB 503 at [174]).
4. The Tribunal was not satisfied that the applicant met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Act) (CB 503 to 505 at [175] and [188]). For the same reasons, the Tribunal found that the applicant failed to satisfy the complementary protection criterion under s 36(2)(aa) of the Act (CB 504 to 505 at [178], [187] and [189]). In that context, the Tribunal also found the applicant would not face harm on account of his illegal departure, nor any other aspects of his profile (CB 504 to 505 at [180], [184] and [186]).

1. These proceedings were commenced by an application to show cause filed with the Court on 14 January 2019. At the time the proceedings were commenced, the applicant was represented by Counsel (on a direct access basis), who has since passed away.
2. The proceedings were initially docketed to another Judge of this Court (first primary Judge). On 7 February 2019, a Registrar made orders which provided a grant of leave to the applicant to amend his originating application, for the preparation of a Court Book and for the filing of evidence. Additionally, the Registrar adjourned the proceedings for callover before the first primary Judge, on a date to be advised to the parties administratively.
3. The proceedings were later placed in the central migration docket. They were called-over by a Registrar on 24 January 2025, on which occasion the applicant appeared by telephone with the assistance of an interpreter in the Tamil language.
4. The proceedings remained in the central migration docket until 25 June 2025, on which date they were docketed to me. On that date, I made orders listing them for hearing before me at 10:15am on 15 October 2025. The proceedings were initially listed in person, but later changed to an online hearing via Microsoft Teams (MS Teams). The parties have been directed to appear by MS Teams following provision to the Court of a document (see [18] and [30] to [31] below) which includes an assessment of the applicant's risk to both himself and others, including a past incident of the applicant injuring a friend. To ensure the safety of the applicant, as well as practitioners and Court staff, I required the parties to attend remotely.
5. The parties have duly appeared before me this morning by MS Teams. The applicant is assisted by an interpreter in the Tamil language, who is present with me in the courtroom. The first respondent is represented by Counsel. At the commencement of the hearing, the applicant and the interpreter confirmed that they could understand one another. The MS Teams connection has remained clear throughout, and I am satisfied that the applicant has been able to fully engage with the hearing via the interpreter.

1. In terms of the evidence received at the hearing, the Court Book was tendered for the first respondent and marked as Exhibit "1R". For the applicant certain documents were sought to be tendered which eventually the Court received as Exhibits "1A" and "2A". The first respondent did not object to the Court receiving "1A" and "2A", subject to relevance.
2. The applicant confirmed that he had received the Court Book. He confirmed that he had received the first respondent's written submissions, which were read to him by a counsellor at NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), together with the assistance of person who speaks Tamil. Counsel for the first respondent summarised the first respondent's written submissions, which were duly interpreted to the applicant during the course of the hearing at the start of each ground.
3. During the course of addressing ground 2, the applicant made certain submissions which initially seemed to indicate that he was applying for an adjournment of today's hearing, but he later confirmed that he was not.

1. In circumstances where the applicant has, on a number of occasions, been given the opportunity to amend but has not done so, the grounds which fall for consideration are those in the originating application. The grounds are as follows (particulars omitted):

Ground 1

The Tribunal ("AAT") conflated the claims or failed to deal with claim / integer of claims of the Applicant having to pay bribes with the general circumstances that scars do not result in harm; with the claim of the Applicant having scar but failed to deal with the claim that the Applicant had to pay bribes in his circumstances of scarring.

Ground 2

The Tribunal ("AAT") accepted the claim that the Applicant's home was raided the Applicant's home was accepted by the Tribunal but it failed to carry out forward looking test.

Ground 3

The Tribunal erred in failing to engage with the Applicant's claim of fear of white vans and give the claim realistic consideration and thereby committed jurisdictional error.

1. In respect of ground 1, which makes allegations that the Tribunal failed to consider integers of the applicant's claims pertaining to scars and particular bribes that he was asked to pay, the applicant initially made submissions to the effect that:

(a) he had forgotten everything;

(b) the events were a long time ago; and

(c) because of his mental health he could not address the ground.

1. While initially this appeared to be a suggestion that the applicant was asserting that he could not participate in today's hearing, for reasons which I will address in respect of ground two, it appears that the applicant was really saying that he did not wish to revisit the substance of his claims by recounting them. As I explained to the applicant at the outset of the hearing, merits review is no part of this Court's jurisdiction and is not the task that I am undertaking. The applicant was not asked by the Court to recount his claims.
2. When asked to address ground one specifically, he was able to do so and to engage with its substance. The applicant said that he has a lot of scars which were "not cared for" by the Tribunal. I asked the applicant to clarify whether by this he meant that the Tribunal member did not look at his scars, or that the claim about the scars was not considered. The applicant clarified that the Tribunal member had seen the scars, and he was saying that his claims about scarring had not been considered by it. The applicant then said he had nothing else to say in addition to that submission.
3. The first respondent has construed ground one as contending that the Tribunal failed to consider the applicant's claim about having to pay bribes to avoid harm because of his scars. The Tribunal noted the applicant's claim that the "authorities question him about his scars and demand a bribe" (CB 482 at [52]). There is nothing to suggest that the Tribunal did not accept the applicant's claims to have had to pay bribes. However, the Tribunal repeatedly found the applicant did not claim to have been mistreated while being questioned (CB 487 to 490 at [89], [97] to [98] and [102]). The Tribunal also referred to country information stating that check points have now been removed (CB 487 at [89]) and that scarring no longer leads to adverse attention (CB 489 at [100]). The Tribunal concluded the applicant would not face harm on account of his scars (CB 490 at [101] to [102]). The first respondent contends that the claim as made was addressed. I agree.
4. The Tribunal put to the applicant that, despite being questioned when passing through checkpoints, he was never arrested or harmed. The country information indicated that the military checkpoints had been removed in the north and south of Sri Lanka, and that checkpoints are restricted to army barracks. The applicant claimed there was an army camp in his village and that it was not safe for him (CB 487 at [89]).
5. As to the applicant's scarring, the Tribunal concluded that the applicant would not be imputed with LTTE associations due to his scarring. The applicant was found to have no links with the LTTE nor to have ever been a member, or trained with, the LTTE. The Tribunal did not accept that the applicant's brother was required to report to any LTTE authorities, nor that he was of any adverse interest to Sri Lankan authorities. Further, despite his scarring the applicant was able to regularly travel, and did not claim to have been mistreated for reasons of his scarring or imputed LTTE associations as a result of the scarring. As the applicant was not mistreated or imputed with LTTE associations, during the civil conflict or in recent years following the conflict with the Tribunal, and in noting recent country information, the Tribunal did not accept that he would be imputed with the LTTE associations due to his scarring.
6. I am satisfied that the claim, as it was made, was thoroughly addressed by the Tribunal by reference to the country information which it took into account. I am not satisfied that there was any aspect of the applicant's claims in this regard which were not dealt with by the Tribunal, and that the allegation in ground one is not made out.

1. When ground 2 was interpreted to the applicant, he did not address the substance of it. Rather, he made submissions in respect of these proceedings and his history of mental health. He again repeated that the events he was being asked about had happened a long time ago. The applicant said that he could not tell the Court anything about his claims because he "was released from hospital before [he] came here"[1].
2. Apprehending that the applicant may be suggesting that he had only very recently been discharged from hospital, I asked him to which hospitalisation he was referring. The applicant said he was referring to an incident in July 2024 where he was hospitalised for a month. I asked him whether this was the incident that is addressed in Exhibit "2A", and he confirmed that it was.
3. Exhibit "2A" records that the applicant was brought into the relevant treatment facility by police in circumstances where he had stabbed his friend. However, aspects of that report indicate that the applicant was (errors in original and anonymisation added):

...

Future focused - Applying for viza [sic] and has upcoming court to sort out his Viza status

Nil psychotic or delusional content

...

intact memory. Nil sign of disorientation, [applicant] spoke via the interpreter clearly

...

Good insight with intact judgement

Good attitude to and engagement in care was on time for his appointment and willing to receive MH help and support

1. I asked the applicant if what he was saying was that he could not participate in the hearing today by virtue of what was contained in the Exhibit "2A". He initially said yes and that he continues to take medication. However, the applicant made submissions which seemed to reveal the essence of his complaint. The applicant made reference to the proceedings having been on foot for a considerable period of time. The applicant expressed a distinct sense of frustration that, jurisdictional error having been found in previous proceedings, on remittal the Tribunal had once again affirmed the decision not to grant him a protection visa (CB 383 to 384). The applicant said that he has attended so many interviews regarding his visa and that he "is fed up". The applicant says that if he talks too much he gets depressed. I expressly asked the applicant if he was asking to adjourn today's proceedings or whether he was prepared to continue. The applicant said he was not seeking an adjournment, because the matter had been "dragging on for a long period of time", and that he "came to this country as a refugee and has been suffering for the past 14 years"[2].
2. I do not disagree with the applicant that the proceedings have, objectively, been on foot for a considerable period of time. However, any expectation that the applicant had that because the proceedings had been remitted on the last occasion, he would therefor be granted the visa, is mistaken.
3. In circumstances where:

(a) the applicant expressly said he did not want the proceedings to adjourn;

(b) there is no more recent medical evidence other than the report which forms Exhibit "2A" to suggest that the applicant was otherwise not able to participate in today's hearing; and

(c) from my own observations of the applicant throughout today's hearing and his engagement both with the Court and the interpreter;

I was satisfied that it was appropriate to proceed.

1. The applicant otherwise had nothing substantive to say about ground two.
2. The first respondent says that the Tribunal accepted the applicant's claims that his home was raided, on the basis of the short media report provided to it, however, it failed to carry out the forward looking test. In particular, the ground refers to his claims relating to media reports about a box containing explosives being discovered in the Jaffna Sea in 2018. While the Tribunal accepted this may have led to "homes in the local area, including the applicant's family home" being searched, it did not accept these reports had any bearing on the applicant's protection claims (CB 492 at [116] to [117]). Again, that addresses the claim made, and there is no basis to suggest the Tribunal did not carry out a forward-looking test. I agree with the first respondent's submission. Ground two is not made out.

1. In respect of ground 3, the applicant said that he did not want to say anything about it, that he had submitted the things he wished to say, and that the Court could consider ground three without him having to elaborate further upon it. I took this to being a reference to the applicant not wishing to recount again his claims about white van abductions although, again, this would not have been any part of the Court's task in judicial review.
2. The applicant otherwise made similar submissions to those, which he made in response to ground two. He said that he had already been "brought here"[3] on two occasions, in circumstances where he had won his case in this Court. The applicant said that the fact the Court had accepted the conceded error by the first respondent meant that the Court had accepted that the applicant had a reasonable case.
3. The applicant made submissions to the effect that he had been "fighting this case for a long time"[4] and asked, rhetorically:

(a) how many times does he have to go back when the Court had found in his favour;

(b) what he could do; and

(c) how many times he could bear this?[5]

1. I am not unsympathetic to the applicant's circumstances, in particular how long it has taken for these proceedings to be able to be heard. While I accept that he says he felt he had no choice but to pursue judicial review in this Court, the fact remains that it was an election by him to do so.
2. The applicant otherwise had nothing substantive to say in respect of ground three, and in submissions in reply said:

that the abduction with white vans in his country was serious, but to those people living outside his country, they may not take it seriously.

1. The first respondent construes this ground as being an allegation that the Tribunal erred by failing to consider the applicant's claim to fear he would be abducted in a white van. However, the Tribunal clearly acknowledged the applicant's claim to fear white van abduction (CB 497 to 500 at [150] and [158]) and referred to country information (CB 500 at [159]) which indicated that such abductions are no longer common. On a fair reading, the claim was rejected by the Tribunal's findings of greater generality at [172] in not accepting that the applicant will be harassed, arrested or detained for reason of any imputed connection with the LTTE: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French , Sackville and Hely JJ at [47].
2. In its reasons, the Tribunal relied on current country information to respond to the applicant's claimed fear of 'white van abductions' to which it said at [159]:

DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 referred to incidents where police did not follow protocol during arrest. DFAT understands that disappearances are no longer common.

1. I accept that while this could have probably been expressed slightly more clearly, on a fair reading of the Tribunal's decision as a whole, the findings at [172] subsumed within them a rejection of the claim. Ground three is not made out.
2. In circumstances where the applicant has not established any of the alleged errors raised in the originating application, I am satisfied that the decision of the Tribunal is not affected by jurisdictional error. As such, it is a privative clause decision and must be dismissed.

1. Consequent upon my dismissal of the proceedings, Counsel for the first respondent seeks an order that the applicant be ordered to pay the first respondent's costs fixed in the sum of $5,600. When asked what he wished to say about whether costs should follow the event, or the amount sought, the applicant said that he could not afford to pay the amount because he is still taking tablets, and he is jobless, so he cannot make payment, and the applicant asked the Court to please consider his mental health issues.
2. In terms of whether costs should follow the event, I am satisfied that they should. I am taking into account, as requested by the applicant (but would have in any event), whether there is anything arising from the mental health report of last July which would militate against a costs order being made.
3. While I accept that the applicant did experience some issues in July of last year, again, it is not a particularly recent report. I accept that the applicant may not be working at this time, although that is reasonably common for protection visa applicants in this Court who usually do not have work rights. I am prepared to accept that a costs order in any amount, but in the amount being sought, might be stressful to the applicant, as it would be to many applicants. However, without more, I am not satisfied that it is a basis upon which the Court would not make a costs order or would not make a costs order in the amount sought.
4. In order to assist the applicant in understanding the costs order and the process that will follow thereafter, with a view to hopefully alleviating any particular stress caused by the costs order, I explained the Court's understanding that after a costs order is made, the solicitors for the first respondent will write to the applicant to explain to him who with at the Department he can speak about the costs order, including potentially a reduction, time to pay or the ability to pay in instalments, and that is something that he can discuss further with the Department.
5. Rule 25.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), provides that where the Court is satisfied that a party is entitled to costs in a migration proceeding, that they are entitled to seek the amount up to and including that which is specified in Schedule 2, Part 3 of the Court's Rules. That amount is presently in excess of $9,000, and in this case the first respondent seeks only $5,600. I am satisfied that costs should follow the event and that the amount sought is reasonable having regard to the nature of the matter, and the fact that Counsel was retained, and I am prepared to warrant for Counsel. In all the circumstances, I am satisfied that that is the amount in which the costs order should be made.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Transcript 15 October 2025 at T07.08 to T07.09

[2] Transcript 15 October 2025 at T08.09 to T08.10

[3] Transcript 15 October 2025 at T08.37

[4] Transcript 15 October 2025 at T09.24

[5] Transcript 15 October 2025 at T09.24 to T09.27