BSP18 v Minister for Home Affairs [2025] FedCFamC2G 1932

1. Before the Court is an Application filed on 6 April 2018, in which the applicant seeks judicial review of a decision of the second respondent (Authority) dated 22 March 2018. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (Visa).

1. The applicant is a citizen of Sri Lanka.
2. Sometime in early January 2013, the applicant arrived in Australia by boat as an unauthorised maritime arrival.
3. On 9 January 2013, the applicant participated in an Entry Interview.
4. On 13 February 2017, the applicant applied for the Visa with the assistance of a migration agent (First Migration Agent). The applicant's claims were set out in a Statement of Claim dated 10 February 2017 and annexed to the Visa application. Relevantly, the applicant's claims for protection can be summarised as follows:

(1) the applicant is a Tamil from Kottaipitti;

(2) the applicant's father was a bus driver. In March 2007, his father was driving a bus which overturned and caught fire resulting in four passengers dying and many others being injured;

(3) in October 2007, the applicant's father was abducted from Mannar district and assaulted by unknown persons. The father returned home nine days later;

(4) after the applicant father's abduction, the family received threats from unknown people. The applicant's mother reported the threats to the police but they did not take any action;

(5) on an unspecified date at 1.00am, two men entered the applicant's home and asked in Sinhalese where the applicant's father was. They told the men that he was working. The men searched the home for the father and told the applicant that one day they would murder his father. The applicant and his family went to the police station to report the incident but they did not take any action;

(6) the men visited frequently to enquire about the applicant father's whereabouts. To avoid further threats, the father made arrangements to travel overseas however people found out about the father's intention to travel and the men seized the father's passport and tore it to pieces. The men warned the father in Sinhalese that if he made another attempt to leave, they would murder him;

(7) the applicant accompanied his father on some of the bus trips. On one occasion, the bus was stopped and they were robbed and the father assaulted by six unknown men. The applicant and his father reported the incident to the police but they did not take any action;

(8) the father tried to get work elsewhere, but people called him and threatened that they would abduct his children if he moved to another place. The mother was traumatised and attempted to commit suicide;

(9) the entire town started commenting on the applicant's father being a terrorist and told him this is why he had been abducted and beaten up;

(10) during the election period, certain people came to the family home, labelled the applicant's father as a terrorist and robbed him. They said that one day they would murder him;

(11) in January 2009, the applicant's father was again abducted and assaulted. He was found three days later under a bridge unconscious and beaten. He was taken to a hospital where he stayed for six days. Once the father was home from hospital, he confided in the applicant and family that he was transporting arms for the Liberation Tigers of Tamil Eelam (LTTE) that exploded on the bus when it crashed and caught fire in March 2007, and that this was the reason for the mistreatment and abductions;

(12) the applicant's father became depressed and was struggling to cope with a broken neck, hand and two broken legs. In February 2009, the applicant's father committed suicide. The applicant believes the suicide was suspicious as his father's legs were close to the ground;

(13) after the applicant father's death, the applicant and his brother continued to be targeted with threats and abductions. On one occasion, five men beat him up and abducted him. They told the applicant that they smuggled weapons to the LTTE along with his father;

(14) the applicant did not feel safe in the village so he got a job in the city. However, he was not safe in the city either and men came and abducted him from work. They blindfolded and took him away for eight hours during which time they beat him and questioned him about who had supplied the weapons. The applicant said he did not know about the weapons. One day, the applicant escaped and went home; and

(15) the applicant's mother told the applicant and his brother that they will never be safe in Sri Lanka and they departed.

1. On 9 May 2017, the applicant attended an interview with the Department of Immigration and Border Protection, as it then was (Department) to discuss his Visa application (Visa Interview).
2. On 12 July 2017, the Delegate refused to grant to the applicant the Visa. The Delegate considered that the applicant's written claims contained within the Statement of Claim varied greatly from his oral testimony given at the Visa Interview.
3. On 17 July 2017, the Delegate's decision was referred to the Authority for review.
4. On 28 July 2017, the applicant's First Migration Agent emailed the Authority requesting a copy of the applicant's Visa Interview recording. On the same day, the Authority provided the applicant's First Migration Agent a copy of the Visa Interview recording.
5. On 3 August 2017, the applicant's First Migration Agent ceased to act on the applicant's behalf.
6. On 7 August 2017, the applicant appointed a new migration agent to act on his behalf in relation to the Authority's review (Second Migration Agent). On the same day, the Second Migration Agent provided to the Authority written submissions dated 7 August 2017 and supporting documents on behalf of the applicant in relation to the Authority's review (IAA Submission). In summary, it was alleged that the applicant was poorly represented during the Visa application and before the Delegate by the First Migration Agent and that:

(1) the Statement of Claim annexed to the applicant's Visa application was of questionable quality and did not articulate the applicant's claims properly. It included language and expressions that were not used by the applicant, had not been read back to him and contained "serious inaccuracies"; and

(2) this led to the applicant's oral evidence at the Visa Interview being inconsistent with his Statement of Claim.

1. On 22 March 2018, the Authority affirmed the Delegate's decision not to grant the applicant the Visa. On 23 March 2018, the Authority sent a copy of its decision and reasons to the applicant's Second Migration Agent.

1. The Authority issued its statement of decision and reasons on 22 March 2018 (Authority Decision).

1. At paragraph [2] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act).
2. At paragraphs [3] - [4] of the Authority Decision, the Authority stated that it had received the IAA Submission and considered it to reiterate the claims made to the Delegate and contained arguments in relation to the issues before the Delegate. At paragraph [5], the Authority summarised the applicant's claims as contained in his Statement of Claim and Visa Interview about the bus incident, which was alleged to have occurred in March 2007, and noted that the Delegate found the applicant's evidence regarding this incident to be unreliable and as such did not accept that the incident occurred. At paragraph [6], the Authority set out and considered the content of the IAA Submission which can be summarised as follows:

(1) based on the applicant's evidence at the Visa Interview, it is apparent that the bus incident could have occurred in December 2007 (not March 2007), when the applicant claims he was focused on his final exams at school;

(2) the IAA Submission refers to two reports from 2007 and 2008, which indicate that in December 2007 there was an LTTE attack on a bus which was transporting civilians from Anuradhapura to Janakapura, in which 14 people were killed and 21 wounded. The IAA Submission also refers to a Google Maps extract to make the observation that Anuradhapura is 33 kilometres from the place where the applicant's father told him the bus caught alight. Based on this information, the IAA Submission posits that it is open to the Authority to find that in fact the applicant's father, as the bus driver, was responsible for the bus being targeted by the LTTE and that his father lied to the applicant when he said that the bus caught alight because of weapons hidden on board;

(3) the applicant's father gave him an "alternate version" of events, which the applicant never questioned until recently.

1. Accordingly, at paragraph [7] of the Authority Decision, the Authority considered the IAA Submission to constitute new information. The Authority noted that the IAA Submission did not advance any reason as to why the applicant's father would lie to him in the first place, nor indicate what had now caused the applicant to question what his father told him almost 10 years later. Further, the Authority considered the link which the IAA Submission had drawn to infer that the bus incident took place in December 2007, not March 2007, and under entirely different circumstances to be "tenuous" and "speculative". Accordingly, the Authority was not satisfied that the new information was credible personal information and found that ss 473DD(b)(i) and (ii) were not satisfied. While the Authority had regard to the issues identified by the IAA Submission regarding the legal assistance the applicant received from the First Migration Agent, the Authority found that there were no exceptional circumstances which would permit consideration of the new information.
2. At paragraph [8], the Authority considered the country information from the International Truth and Justice Project, "Unstopped: 2016/17 Torture in Sri Lanka" (ITJP Report) contained in the IAA Submission which was not previously before the Delegate. The Authority noted that the ITJP Report post-dated the Delegate's decision and provided a recent assessment of the situation in Sri Lanka for Tamils. Accordingly, the Authority was satisfied that the ITJP Report could not have been provided to the Delegate, and that there were exceptional circumstances to justify its consideration.

1. At paragraph [9] of the Authority Decision, the Authority summarised the applicant's claims for protection.
2. At paragraphs [13] - [15] of the Authority Decision, the Authority noted the inconsistencies between the applicant's Statement of Claim and Visa Interview and considered these in light of the applicant's distress at points during his Visa Interview and in light of the submission made regarding the applicant's representation by the First Migration Agent at the interview. The Authority also took into account that the applicant's knowledge of what occurred with the bus incident was based solely on what his father told him two years after the incident and accepted that for this reason the applicant's understanding of the incident was limited. However, at paragraph [16], the Authority noted that the applicant's evidence at the Visa Interview regarding other events in which he was directly involved was vague, contradictory and lacking in credibility. Accordingly, while it had regard to the explanations and arguments contained in the IAA Submission, as well as the applicant's distress during certain points of the Visa Interview, the Authority found that overall the applicant was not a credible witness, and that most of the events he described did not take place.
3. At paragraph [18] of the Authority Decision, the Authority accepted that the applicant's father was a bus driver and that in 2007 he was on board a bus which rolled and subsequently caught fire because of weapons hidden on board. Despite there being no corroborative evidence before it, the Authority was prepared to accept that four people were killed and others, including the applicant's father, were injured. Noting the applicant's Statement of Claim indicated that his father was driving the bus at the time of the incident, the Authority accepted the applicant's evidence at the Visa Interview that his father job-shared with another driver on long trips, and that at the time of the incident his father was a passenger on board the bus.
4. However, at paragraph [19] of the Authority Decision, the Authority considered that the evidence at the Visa Interview was contradictory in relation to whether the father was actively involved with smuggling the weapons. At paragraphs [20] - [22], the Authority had "significant concerns" with the applicant's evidence regarding the events which he claimed occurred after the 2007 bus incident, noting the inconsistencies in his accounts of those events including around his father's arrest. The Authority did not consider it credible that if the applicant's father was suspected of smuggling weapons for the LTTE on board a civilian bus, that he would have been arrested and then released shortly thereafter, or that he would have been able to resume work with the same bus company. At paragraphs [23] - [33], the Authority found that the evidence regarding the subsequent threats was also contradictory. At paragraphs [34] - [36], the Authority did not accept that the applicant's father was searched for following the 2007 bus incident and was not satisfied that he was a person of interest following the 2007 bus incident. As the Authority was not satisfied that the applicant's father was a person of interest following the 2007 bus incident, it also did not accept that the applicant was abducted and interrogated about hidden weapons, and rejected a claim of a recent visit from unknown persons inquiring about the applicant.
5. At paragraphs [27] - [41] of the Authority Decision, the Authority considered relevant country information and, noting the information indicated improvements for Tamils in Sri Lanka, concluded at paragraph [42] that it was not satisfied that the applicant would be imputed with a pro-LTTE opinion as a young Tamil male, nor that he faced a real chance of harm as a result of the 2007 bus incident or from Sinhalese political parties should he return to Sri Lanka.
6. At paragraphs [43] - [52] of the Authority Decision, the Authority considered the applicant's claim to fear harm as a returning asylum seeker who departed illegally. Having considered relevant country information, the Authority accepted that the applicant would be questioned and investigated on return to Sri Lanka and may be charged and fined under the Immigrants and Emigrants Act. However, the Authority found that the applicant had no adverse profile with the authorities and did not accept that the applicant would be imputed with any pro-LTTE opinion. Therefore, the Authority was not satisfied that the applicant faced a real chance of harm on the basis of being a returning asylum seeker who departed illegally.
7. Accordingly, the Authority was not satisfied that the applicant met the criteria in ss 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate's decision.

1. The applicant applied for judicial review of the Authority Decision on 6 April 2018. The Application contains the following grounds for judicial review (without amendment):

a. Was made without jurisdiction or is affected by jurisdictional error;

b. Failed to take into account relevant considerations;

c. Is otherwise contrary to law.

Particulars/Details

Particulars/Details will be provided in accordance with directions of the Court.

1. The applicant did not otherwise provide particulars of the grounds upon which he seeks to rely.
2. The applicant also relied on an affidavit filed on 6 April 2018 which annexed a copy of the Authority Decision.
3. The Minister filed a Response on 1 May 2018. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the Authority Decision is not affected by jurisdictional error.
4. The Minister also filed written submissions on 16 September 2025.

1. The hearing took place on 1 October 2025.
2. The applicant appeared on his own behalf and was assisted by an interpreter in the Tamil and English languages. The Minister was represented by Mr Lessing of Counsel.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. As already set out, the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. The Application contains one ground of review, which alleges that the decision of the Authority was made without jurisdiction or is affected by jurisdictional error, failed to take into account relevant considerations, and is otherwise contrary to law. No particulars are provided.
2. The single ground of judicial review is unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
3. At the hearing the applicant was invited to elaborate on the ground for review contained in the Application but was unable to do so.
4. It is clear that the Authority had jurisdiction to consider the review. The applicant was a "fast track applicant" under the Act. The Delegate's decision to refuse the applicant the Visa was referred to the Authority on 17 July 2017. Pursuant to s 473CC of the Act, the Authority was required to conduct the review.
5. As submitted by the Minister, it can be accepted that a decision-maker may commit jurisdictional error by failing to consider a matter the decision-maker is bound to consider in making their decision. Not every such failure will justify the Court setting aside the impugned decision, as an overlooked factor may be so insignificant that it could not have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at [15], [39] - [40]. Additionally, as submitted by the Minister, a distinct, but similar basis for jurisdictional error may arise where there is a failure to consider evidence, depending on the importance of the ignored material and the seriousness of the error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] - [113]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34], [54]. However, the applicant has not particularised, and was unable to do so at the hearing, what relevant or mandatory consideration the Authority failed to take into account.
6. At the hearing, the applicant submitted that he had "some doubt" as to whether the documents he provided were "looked into" by the Department and referred to articles concerning the bus crash his father was involved in. As the Court attempted to explain to the applicant, the Court has no jurisdiction to consider the Delegate's decision. However, and in any event:

(a) at paragraph [22] of its decision the Authority records that it had regard to the material given by the Secretary under s 473CB of the Act; and

(b) as set out above, at paragraph [6] of the Authority Decision, the Authority expressly refers to the applicant's submission to it referring to two reports from 2007 and 2008 which indicate that in December 2007 there was an LTTE attack on a bus which was transporting civilians from Anuradhapura to Janakapura, in which 14 people were killed and 21 wounded, together with a Google Maps extract. At paragraph [7], the Authority considered this constituted new information for the purposes of s 473DD of the Act, for the reasons it gave was not satisfied that either s 473DD(b)(i) or (ii) were met and further, that there were no exceptional circumstances such that the new information ought be considered. I discern no error in the Authority's approach to this: ASU17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11].

1. Finally, the applicant submitted that he had not received a "proper" decision. He informed the Court that this was because he disagreed with the outcome. By these submissions the applicant seeks impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ. As the Court endeavoured multiple times to explain to the applicant, merits review is beyond the jurisdiction of this Court.

1. It follows from the above that the Application must be dismissed.
2. The Minister seeks that the applicant pay its costs in the amount of $8,500. I note that this is below the amount provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and shall order accordingly.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.