DDC19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1865

1. This is an Application for judicial review filed on 16 August 2019, seeking review of a decision of the Administrative Appeals Tribunal ("the Tribunal"), as it was then, dated 29 July 2019, affirming an decision of a delegate of the first respondent ("the delegate") to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa ("the visa") under s 65 of the Migration Act 1958 (Cth) ("the Act").
2. For the reasons set out below, the Application must be dismissed.

1. On 30 May 2014, the applicant, a citizen of Sri Lanka, first arrived in Australia on a Transit (Class TX) visa.
2. On 7 July 2014, the applicant lodged an application for a protection visa. A second application was lodged on 28 July 2014, after the first application was deemed invalid.
3. On 31 May 2016, a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied that the applicant met the requirements under s 36(2) of the Act.
4. On 21 June 2016, the applicant lodged an application for review of the delegate's decision with the Tribunal.
5. On 20 September 2018, the Tribunal invited the applicant to appear at a hearing on 10 October 2018 to give evidence and present arguments.
6. The applicant's representative requested a postponement of the Tribunal hearing, which was granted. The hearing was rescheduled for 13 November 2018.
7. On 13 November 2018, the applicant and his representative appeared before the Tribunal.
8. On 5 June 2019, the applicant was invited to respond to the information pertaining to the political situation in Sri Lanka following the 2018 constitutional crisis and the Easter Sunday bombings in 2019.
9. On 29 July 2019, the Tribunal affirmed the decision not to grant the applicant the visa.

1. At [1] - [4], the Tribunal set out the application for review and the background of the matter.
2. The Tribunal correctly considered the refugee criterion set out in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations").
3. At [16] - [19], the Tribunal considered the complementary protection criterion under s 36(2)(aa) of the Act, and in accordance with the Ministerial Direction No. 56, took into account PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, PAM3 Refugee and Humanitarian - Refugee Law Guidelines, and country information prepared by the Department.
4. The Tribunal reviewed the claims outlined in the applicant's written statement, which was attached to their visa application.
5. At [31], the Tribunal reviewed the supportive letter submitted by the applicant, dated 23 June 2014, of an elected member of the North Western Provincial Council ("the supportive letter"). The supportive letter claimed that the applicant participated in various United National Party ("UNP") protests against the government in Sri Lanka at the time, which led the applicant to fear persecution from October 2011 onwards. The elected member claimed that the applicant was unable to protect his life in Sri Lanka.
6. At [35], the Tribunal outlined additional claims made by the applicant during an interview with a Department of Immigration and Border Protection official. These additional claims included that people in villages sought revenge against supporters of the UNP due to the inability to target high profile UNP Members of Parliament; that the applicant had suffered permanent facial scarring during a physical argument following the 2010 elections; that the applicant had no faith in the current government in Sri Lanka; and that applicant believed that the government was temporary which may result in an 'even worse' situation.
7. At [46]- [48], the Tribunal considered the burden of proof in relation to administrative decision-making, noting that decision-makers were not required to accept all allegations made by applicants, especially where claims were inconsistent with independent evidence. At [48], the Tribunal stated that it did not accept that the applicant was a credible or reliable witness.
8. The Tribunal considered the applicant's claim surrounding the fear of persecution being undermined due to personal circumstances. At [54], the Tribunal noted that persecution arose in and from 2010, and at [24], it noted that the applicant lived in New Zealand from 2011 to 2012, after which he returned to Sri Lanka.
9. At [53] - [55], the Tribunal considered both the applicant's failure to lodge any protection claims while in New Zealand despite the applicant holding fears of persecution during this time and the applicant's return to Sri Lanka upon departure from New Zealand. The Tribunal found that the applicant's failure to lodge a protection claim or discuss their fears of persecution while in New Zealand undermined the credibility of the applicant's claim of genuine or deeply held personal fears of persecution. The Tribunal further found that the applicant's return to Sri Lanka for a period of two years indicated that the claims of genuine or urgent fears of persecution were not credible.
10. At [63], the Tribunal considered a claim made by the applicant during the Departmental interview relating to harm suffered in 2010, which caused the applicant severe physical harm, losing part of his face while fleeing rival political supporters. The Tribunal noted that this claim was not mentioned in the applicant's written claims or the supportive letter that was submitted. On this basis, the Tribunal was of the opinion that, given the significance of the physical harm claimed, it would have been reasonable to mention it in both documents.
11. At [64] - [70], the Tribunal considered the applicant's concerns regarding the political situation in Sri Lanka. The Tribunal noted at [66] that the applicant did not respond to the invitation to comment on the country information. Therefore, the Tribunal made its finding based on the assessment of the available country information. The Tribunal found that the applicant's non-responsiveness to the invitation to comment further undermined the credibility of the applicant and any genuine, deep, or urgent fears of persecution for political reasons as claimed.
12. At [71] - [82], the Tribunal made cumulative adverse credibility findings, noting that the applicant's claims of past harm, political opinions, and activities were weak and that these claims did not convincingly substantiate any support the applicant had for the UNP, or any activities, when considered against the applicant's travel history. The Tribunal noted that it was unable to provide the applicant with the benefit of significant doubt due to the above cumulative findings and that due to these findings, the Tribunal was unable to find that the applicant's claims had not been fabricated for migration purposes, or that the applicant would suffer any real risk of significant harm as a consequence of being returned to Sri Lanka.
13. The Tribunal did not accept the applicant's past memberships, support or affiliations of the UNP in general to have been genuine or credible, or that the applicant had any genuine affiliations or associations with the UNP. The Tribunal did not find the supportive letter to be reliable corroborative evidence of the applicant's past activities. It did not accept or view the content as genuinely reflecting the applicant's actual past political activities, sympathies or actual political opinions. The Tribunal further did not accept the applicant's written and oral claims of being subjected to assault by a rival political supporter. The Tribunal did not accept that the applicant did not make any complaint to the authorities in Sri Lanka, including the police, or that the authorities had refused to take any action.
14. The Tribunal did not accept that the applicant was unable to or was intimidated out of lodging a protection claim while in New Zealand, or that the applicant had been prevented from doing so. The Tribunal did not accept that the applicant had been forced, compelled or threatened into not returning to his home area in the North Western Province, or that the applicant held any fears of being located or discovered by political rivals and was intimidated by them to prohibit him from participating in other electoral activities for the UNP candidates. The Tribunal did not find that the applicant had any subjective or objective fears of persecution based on Convention reasons or non-Convention reasons, if the applicant returned to their home area or anywhere in Sri Lanka.
15. Accordingly, at [81], the Tribunal did not find the applicant to be or resemble a person of interest who may be harmed or killed for holding their political views anywhere in Sri Lanka.
16. Based on the overall adverse credibility findings (cumulatively considered), the Tribunal at [82] was not satisfied that there were substantial grounds to believe, as a necessary or foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that the applicant would suffer harm or was at real risk or significant harm based on the fabricated dispositive written, oral and documentary claims.
17. The Tribunal noted at [84] that the applicant, at no stage, advanced any claims that he had a real chance of serious harm based on ethnicity or his membership as a failed asylum seeker.
18. The Tribunal at [92] was satisfied, based on the available country information, that the level of insecurity from Islamic terrorism did not mean that the applicant would not receive a level of protection commensurate with international standards. Given that the level of insecurity was a result of external forces, the Tribunal was satisfied that the authorities in Sri Lanka had taken reasonable measures in accordance with the international standards.
19. The Tribunal at [93] accepted the applicant's claim to be of the Sinhalese Buddhist faith. The Tribunal noted that the applicant did not have a profile from these attacks. Therefore, it did not accept that the applicant had any real chance of being targeted for investigation for these attacks by the authorities, either upon arrival or in the community.
20. At [94], the Tribunal similarly assessed the applicant to be at no real risk of suffering significant harm in Sri Lanka, on the basis that the applicant could obtain protection from further Islamic attacks from the authorities. Thus, the Tribunal found that there was no real risk pursuant to s 36(2B) of the Act.
21. At [97], the Tribunal found that the applicant did not have a real chance of serious harm for any Conventions or non-Convention reasons, and that the applicant did not have a well-founded fear of persecution to satisfy s 36(2)(a) of the Act.
22. At [98], based on the same considerations, both individually and cumulatively, and the evidence before it, the Tribunal was not satisfied that the applicant had satisfied the alternative provisions under s 36(2)(aa) of the Act.
23. Consequently, at [100], the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugee Convention and found that the applicant did not satisfy the criteria under s 36(2)(a) of the Act.
24. At [101], the Tribunal considered the alternative criteria and found that the applicant did not meet the requirements under s 36(2)(aa) of the Act.
25. At [102], the Tribunal noted that there were no suggestions made that the applicant satisfied s 36(2) of the Act, on the basis of being a member of the same family unit that satisfies s 36(2)(a) or (aa) of the Act. The Tribunal found that the applicant did not meet the criteria in s 36(2) of the Act.
26. Accordingly, the Tribunal at [103] affirmed the decision not to grant the applicant the visa.

1. The applicant advances one ground of judicial review contained in an Originating Application filed with the Court on 16 August 2025. The applicant's sole ground of judicial review is as follows:

1. The Migration & Refugee Division reviewer erred in failing to consider the personal circumstances of the applicant and the real risk he would suffer if returned to Sri Lanka.

1. Failure to consider the applicant's claims and ignoring the current level of insecurity from Islamic terrorism and the failure on the part of the Government to provide protection to the people.

1. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent's written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing, should he wish to.
2. At the commencement of the hearing, the Court explained that it was undertaking a judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. The applicant claimed that as a former opposition political party member, he was subjected to threats and verbal abuse from supporters of the ruling party at the time. Strangers visited his home multiple times, throwing rocks and breaking windows. On one occasion, he was physically assaulted in the street by these supporters. The applicant reported these incidents to the police several times, but no action was taken, as the police were influenced by those in power. The applicant claimed that the failure of law enforcement to protect individuals in such situations is well-documented, and his case is no different. Returning to Sri Lanka would expose him to serious risks, including physical harm or extrajudicial actions from those in power.
4. The applicant noted that under section 36(2)(a) of the Act, an applicant is required to demonstrate a well-founded fear of persecution and show that the authorities are either unwilling or unable to provide protection, stating that his situation clearly fulfils this condition.
5. The applicant claimed that the political situation in Sri Lanka remains unstable, with numerous reports from international organisations highlighting human rights abuses and political repression. The individuals who pose a threat hold significant influence within the police and judiciary, making it impossible for the applicant to seek redress or safety through official channels. The prevailing culture of impunity ensures that those responsible for such abuses face no consequences, leaving people like himself in constant fear.
6. The applicant claimed that the ongoing threats and uncertainty about his future have had a significant impact on his mental health and that of his family. Living with the constant threat of violence has caused extreme stress, anxiety, and emotional strain, and his health has deteriorated, leading to panic attacks, memory loss and sleep disturbances.
7. If forced to return to Sri Lanka, the applicant claimed he would immediately face the same dangers he had experienced previously. Although the new government is making efforts to tackle underworld activities, it has been unsuccessful so far. Underworld gangs continue to fight among themselves and target their opponents. The applicant stated that he was deeply fearful of returning to Sri Lanka as he believes the Sri Lankan government and authorities would be unable to protect his life.
8. The applicant stated that his case aligns with the principles of Article 1A (2) of the 1951 Refugee Convention, and that the failure of Sri Lankan authorities to protect him demonstrates his need for international protection.
9. The applicant stated that Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits the return of individuals to countries where they may face torture or inhumane treatment, and that, given the history of extrajudicial killings and enforced disappearances in Sri Lanka, the likelihood of facing torture or serious harm upon return is high.
10. The applicant claimed that the threats against him met the standard of the principle of non-refoulement, enshrined in both the Convention Relating to the Status of Refugees and the International Convention on Civil and Political Rights.
11. The applicant further claimed that the Tribunal relied on official information from the Sri Lankan government when assessing his claims, rather than conducting a thorough factual analysis. However, the applicant stated that the accuracy of such information cannot always be trusted, as the state of democracy in Sri Lanka is far from ideal.

1. The applicant's sole ground of judicial review does not identify an error in the Tribunal's decision that would justify overturning its decision.
2. The matters that the applicant claims the Tribunal failed to consider were, in fact, considered by the Tribunal. It appears that the applicant simply disagrees with the outcome of that consideration.
3. The Tribunal explicitly considered the "personal circumstances" of the applicant, in considerable detail. At [53], the Tribunal considered that the applicant's claim that he sought a protection visa in Australia as he feared persecution in Sri Lanka was undermined by the applicant's personal circumstances. At [53], the Tribunal had regard to the fact that persecution was alleged to have begun in 2010, and at [24], the Tribunal noted that the applicant had lived in New Zealand from 2011 until 27 July 2012, when he returned to Sri Lanka.
4. The fact that the applicant never lodged any protection claim in New Zealand, and that after leaving New Zealand, he returned to Sri Lanka, were two matters that undermined the credibility of his claim to fear persecution: [53] - [55]. These findings, which are fatal to the applicant's sole ground of judicial review, were open on the evidence available and justified the conclusion the Tribunal reached.
5. As to the alleged failure to consider the "current level of insecurity from Islamic terrorism", the Tribunal did in fact give consideration to that issue. At [90], the Tribunal found that although there were isolated incidences of attacks associated with Muslim organisations, the Sri Lankan government has implemented measures to uproot these organisations. Contrary to the applicant's submissions, the Tribunal's analysis at [90] - [92] was not based on information from the Sri Lankan government.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].
2. It is also well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
3. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
4. The selection of country information and the weight the Tribunal gives to that information are matters for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
5. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
6. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76].
7. The sole ground of judicial review is that the Tribunal failed to consider the personal circumstances of the applicant and the risk he would suffer if returned to Sri Lanka. The sole particular makes reference to the risk of Islamic terrorism and the failure of the Sri Lankan Government to provide protection to the people.
8. This ground fails on its facts. At [29], the Tribunal comprehensively set out the claims the applicant initially made. At [35], the additional claims made by the applicant at the interview are also recorded.
9. At [53] and onwards, the Tribunal outlined its credibility concerns regarding the applicant, based on his failure to claim protection while in New Zealand and then return to Sri Lanka. I am satisfied these concerns were open to the Tribunal, based on the evidence before it, and for the reasons it gave. In so doing, the Tribunal also specifically considered the late claim made by the applicant that he suffered facial injuries in Sri Lanka at the hands of supporters of a rival political party to the one he supported.
10. The Tribunal also considered relevant country information that indicated, while there had been Islamic-based terrorism in Sri Lanka, the government had taken significant steps to improve the overall security situation, including the deployment of troops following the incidents and the arrest of suspected members of the terrorist group following the Easter suicide bombings. The Tribunal was satisfied that the overall security situation was not one where the applicant would not receive a level of protection commensurate with international standards [92].
11. The information relied upon was not solely sourced from the Sri Lankan government, but from multiple sources, as footnoted in the decision, including a situational update prepared by the Australian Department of Home Affairs at [69].
12. I am satisfied that the conclusions of the Tribunal were reasonably open to it for the reasons it gave based on the totality of the evidence before it. The applicant's claims can be most properly described as vehement disagreement with the Tribunal's factual findings. They do not point to jurisdictional error on the part of the Tribunal.
13. As the applicant is unrepresented, the Court has perused the Court Book tendered and other relevant material. The Court is unable to detect any unarticulated jurisdictional error.

1. In these circumstances, the Application must be dismissed.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.