CKU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 239

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (as it then was) (the FCC): CKU17 & Ors v Minister for Immigration & Anor [2020] FCCA 1766. The FCC dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the IAA) dated 8 May 2017. The IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Delegate) to refuse applications by the appellants for protection visas.
2. In the proceeding in the FCC, the appellants sought to rely on two grounds. On appeal, the appellants rely on only one of those grounds. The appellants' sole ground of appeal is that the FCC erred in not finding that the IAA fell into jurisdictional error by not considering a claim made by the appellants that they face a real risk of harm in the process of obtaining identity documents upon return to Sri Lanka.
3. In my view, for the reasons that follow, no error is shown in the judgment of the primary judge. Accordingly, the appeal is to be dismissed.

1. The following statement of the background facts is based on the FCC's reasons.
2. It should be noted that there is the potential for confusion as the three appellants were identified in a different order in the proceeding in the FCC from the order in which they were identified by the IAA. In the IAA's decision, the first applicant was the husband, the second applicant was the wife, and the third applicant was their daughter. However, in the FCC proceeding the first applicant was the husband, the second applicant was the daughter, and the third applicant was the wife. The parties are identified in the same order in the appeal in this Court.
3. The first appellant is a citizen of Sri Lanka, a Hindu, and a Tamil. He was born in the late 1980s in a village (the Village) in the Vavuniya district in Sri Lanka.
4. The first and third appellants left Sri Lanka in July 2010. They travelled to Malaysia and, from there, to Indonesia, where the second appellant was born.
5. On 29 March 2016, the appellants lodged an application for a Safe Haven Enterprise visa (SHEV). The second and third appellants applied as members of the first appellant's family unit. However, in August 2016, the third appellant submitted a statement in which she claimed to fear harm in Sri Lanka.
6. The first appellant stated his claims for protection in a statutory declaration dated 15 March 2016. His claims are set out in [8] of the primary judge's reasons. Further aspects of the appellants' claims are set out in [9] and [10] of the reasons of the primary judge.
7. On 2 September 2016, the first and third appellants were interviewed by the Delegate.
8. By letter dated 1 November 2016, the Delegate informed the appellants' representative that information provided to the Department indicated that the appellants had previously sought asylum at an Office of the UN High Commissioner for Refugees (UNHCR) and that those applications had been refused. This raised an issue whether the appellants were "excluded fast track review applicants" within the meaning of the Migration Act 1958 (Cth). The appellants were invited to comment on this.
9. On 9 November 2016, the appellants' representative responded to that letter, submitting that the appellants were not excluded fast track review applicants.
10. On 23 February 2017, the Delegate decided to refuse the appellants' applications for a SHEV. In the decision record, the Delegate recorded the opinion that none of the appellants met the definition of "excluded fast track review applicant". In other words, the Delegate accepted the appellants' submission on this issue.
11. The applications were then referred to the IAA for merits review pursuant to the provisions of Pt 7AA of the Migration Act (as then in force).
12. The IAA decided to affirm the decision of the Delegate. The IAA's reasons are summarised in the primary judge's judgment at [21]-[28].

1. In the proceeding before the primary judge, the appellants sought to rely on two grounds:

(a) a proposed new ground (contained in a proposed further amended application), which related to the definition of "excluded fast track review applicant"; and

(b) ground 3 of the application, which was that the IAA failed to consider the claim made at the protection visa interview that the process of obtaining original documentation in Sri Lanka would expose the appellants to serious harm.

1. In relation to the proposed new ground, the primary judge concluded that the ground had insufficient merit to warrant a grant of leave to the appellants to file the proposed further amended application. Accordingly, the primary judge dismissed the appellants' application for leave to file a further amended application. This proposed ground is not pursued on appeal and therefore can be put to one side.
2. The primary judge considered the other ground (ground 3) at [47]-[57] of his reasons, concluding that the ground failed.

1. The appellants' sole ground of appeal is that the primary judge erred in not finding that the IAA fell into jurisdictional error by not considering a claim made by the appellants that they face a real risk of harm in the process of obtaining identity documents upon return to Sri Lanka. In other words, the appellants contend that the primary judge erred in rejecting ground 3 below.

1. The appellants submit that they made two distinct claims, namely:

(a) a fear of harm arising from not having original documents upon return to Sri Lanka; and

(b) a fear of harm arising from the process of obtaining original documents in Sri Lanka.

1. The appellants submit that, while the IAA considered the first of those claims, it failed to consider the second, and thereby fell into jurisdictional error. I will refer to the second claim referred to above as the relevant claim.
2. In support of this submission, the appellants rely on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov) at [24] per Gummow and Callinan JJ (Hayne J agreeing), in which it was held that a decision-maker's failure to respond to a "substantial, clearly articulated argument relying on established facts" could amount to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction. See also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55].
3. The appellants submit that the principle in Dranichnikov applies in the present case. They submit that the IAA conflated their fear of harm due to lacking identity documents with their fear of harm arising from the process of obtaining them.
4. In order to determine whether this ground is made out, it is necessary to consider, first, whether (and, if so, the way in which) the claim was made and, secondly, whether the IAA considered the claim.
5. I accept that the appellants did make a claim to fear harm arising from the process of obtaining original documents in Sri Lanka. Such a claim was made by the appellants' representative during the interview of the appellants by the Delegate on 2 September 2016. The Appeal Book contains a transcript of the interview.
6. By way of context, at page 47 of the transcript, the following is recorded:

I note you've made a claim along the lines of that because you don't have any identity documents, you may face harm.

I do note however that you have copies of identity documents such as a national ID card and a birth certificate. And there's no information to indicate that you will not be able to obtain original identity documents as Sri Lankan citizens.

Maybe we could get the originals using these copies, maybe possible, but I'm not saying that's the only reason, there are many reason and this is one of the reason. Okay, you s...if, if they take my husband, if they imprison him, I'm going to be alone there. You said it's hard for the widow, war widows to have a life there. So what if that means I'm going to be alone, I that means I have to face sexual torture, is that what you're saying? Maybe people accept that and go through that life but I can't do that.

1. After that passage, there are several pages of transcript dealing with the process of refugee assessment with the UNHCR. Following that, at page 51, the appellants' representative made submissions concerning the appellants' claims. The representative's submissions included:

Umm they, they don't have identity documents, an unfortunate thing happened, they've given as best as they can, the evidence. Not having documents and being able to obtain documents in Sri Lanka are probably two different issues. What we forget to look at is the process of obtaining these documents if one was to turn up in Sri Lanka and say, I don't have any ID documents original, I have copies. Can you please issue me these new documents. They would definitely need, at the very least, a birth certificate and a national ID card. Now to obtain these documents, there's a process. The process would expose them, or could expose them, to serious harm, that's my submission. With regard to that concern that you raised, well that's not a problem. You could probably obtain these documents.

(Emphasis added.)

1. During the appeal hearing, the Minister submitted that the last two sentences in the above passage tended to undercut the statement made in the third last sentence. That may be true. Nevertheless, I accept the appellants' submission that in the third last sentence the appellants' representative did make a claim to the effect relied on by the appellants in the FCC proceeding and in this appeal.
2. The appellants also rely on the following passage from pages 53-54 of the transcript:

The accumulative effect of harm is something I request you to consider. The LTTE links accumulatively, being Tamil, being young, and having a child, who also doesn't have a Sri Lankan ID to, to prove who she is. I mean it could come to light that she was born to them but this will be problems when they go back. They could be detained for longer than usual, they could be in prison for longer than usual. The [DFAT] report at 5.26, third (3rd) of October 2014 states that there is a standard procedure and according to that standard procedure they will check with the local police, they will check with the neighbours to see that the person umm is cleared or has any issues. I will [indecipherable] to obtain a copy of this proceedings that commenced in January 2010 and I've already informed umm a counterpart in Sri Lanka to explore that. The, the process of bail would be an issue. Exten...the period of bail, who would actually come to bail her out. Whether the wif...the applicant's umm sister-in-law is willing and able and willing, that's the next question because she said she doesn't want to even divulge her details, doesn't want even disclose that, they fear that they could be targeted because her husband was in the LTTE. So in fact they don't have anyone to bail them out, that thought really came up right now. And that could be a problem for the applicant and his wife. Having no family member. DFAT states on personal recognizance people may be released, but in this situation, would they be personally released? They don't have ID documents, they have copies. Would this not attract adverse attention? My submission is it is, uh, it will, and there's a real chance that they would be imprisoned for a long period of time and therefore be exposed to Convention related harm. Thank you.

1. Apart from the passages set out above, it does not appear that the appellants otherwise made the relevant claim. The passages set out above do not contain any detail in support of the relevant claim, such as how or why the process of obtaining identity documents gave rise to a fear of harm. It appears, therefore, that the basis for the fear of harm was the same as the other claims made by the appellants in support of their protection claims.
2. I turn now to consider the IAA's reasons. In paragraph 7 of its reasons, the IAA set out the claims made by each of the applicants. In relation to Applicant 1 (the husband), the IAA's summary of the claims included:

• His identity documents were destroyed in a fire in Australia and this will cause him problems if he returns to Sri Lanka.

1. In relation to Applicant 2 (the wife), the IAA's summary of her claims included:

• Applicant 2 has no original identity documents and would face serious harm when attempting to obtain identity documents.

1. In relation to Applicant 3 (the daughter), the IAA noted that she was not advancing her own protection claims. The IAA also stated:

• Applicant 1 fears his daughter would face serious harm as it would be difficult to obtain identity documents in Sri Lanka for her as she was born in Indonesia and Applicants 1 and 2 do not have identity documents.

1. It is apparent from the above that the IAA was aware of the relevant claim.
2. At paragraph 51 of the IAA's reasons, the IAA stated:

The applicants lost a number of their original identity documents in a fire in Australia, however I am not satisfied that their fear that this will result in harm on return is well-founded. I accept that the lack of original documents may result in longer processing on return, but as I have not accepted that they have profiles of concern to the authorities I do not accept that there is a real chance that this will result in harm to the applicants.

1. In my opinion, the above passage constituted a consideration - and rejection - of the relevant claim. While the above passage did not in terms refer to the relevant claim, consideration of the relevant claim was "subsumed in findings of greater generality" (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] per French, Sackville and Hely JJ). This is sufficient to constitute consideration of the relevant claim.
2. Further, as discussed above, the relevant claim appears to have relied to a large extent on the appellants' other claims. Those other claims were dealt with in detail by the IAA, and the IAA's findings on those claims are not challenged.
3. For these reasons, which are similar to those of the primary judge, I am not satisfied that the IAA fell into jurisdictional error by failing to consider the relevant claim. No error has been shown in the conclusion of the primary judge.
4. It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also make an order that the appellants pay the Minister's costs, as agreed or taxed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.