Federal Court of Australia

BQD18 v Minister for Immigration and Citizenship [2025] FCA 849

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs in a sum to be fixed.

5.    The parties have liberty to apply if the sum referred to in Order 4 cannot be agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1    Lest there be any subsequent confusion, I note at the outset that although this is an appeal from BDQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 621, that judgment misstates the pseudonym given to the appellant in this case. The correct pseudonym is BQD18. There is, however, no doubt that that is the judgment from which the appellant, known as BQD18, now appeals.

2    The appellant is a Sri Lankan citizen who arrived in Australia by boat on 9 April 2013 and made an application for a Protection (Class XA) (Subclass 866) visa. From 16 December 2014, this application was taken to be one for a Temporary Protection (Class XD) (Subclass 785) visa (TPV) by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth).

3    More than ten years later, the question of the appellant’s right to remain in Australia has still not been resolved. On any view of the matter, that is disgraceful. The matter comes before this Court following the dismissal of the appellant’s application for judicial review by a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 26 June 2024. The decision being reviewed was one made by the then Administrative Appeals Tribunal (now Administrative Review Tribunal) on 3 November 2020, affirming the decision of a delegate of the Minister, made on 16 December 2015, not to grant the appellant a TPV. No explanation has been given for the delay between the decision of the Tribunal and that of the FCFCOA. It was, in any event, the second occasion on which the decision pertaining to the appellant’s TPV had been considered by the FCFCOA. The first occasion was on 27 July 2018 when the then Federal Circuit Court quashed the first decision of the Tribunal made on 21 March 2018, which had affirmed the delegate’s decision, and remitted the matter to the Tribunal.

THE APPEAL

4    Having abandoned all but one of the particulars of ground 2 of the notice of appeal filed on 16 July 2024, and having conceded that ground 1 raised the same error as that particular, the appellant’s sole complaint before this Court was that the primary judge erred in failing to find that the Tribunal relied on an erroneous finding of fact and made a jurisdictional error by reaching a legally unreasonable conclusion.

5    In the appellant’s written statement in support of her original application for protection in 2014, the appellant made the following claim:

28.     My aunt’s brother told me that the police and the CID had gone to my grandmother’s place and asked where my aunt and I had gone. In addition, in April 2014, men from the CID came to my parents’ house in Mahilavaddavan and asked after me. Around a week later, my sister’s husband, Ravichandran … was questioned by the CID and taken away several days later. My family made enquiries with the authorities in order to locate him. The local police suggested that he was being held in Batticaloa and the Red Cross recently confirmed that he had been located there. My sister was able to visit him in jail. The authorities are pressuring him to confess to smuggling weapons, but he does not want to confess to that because it will result in serious punishment. My family is very worried about him, especially because he has been detained and tortured by the Sri Lankan authorities in the past.

    (Emphasis added.)

6    During her interview with the delegate, the appellant’s evidence was that her brother-in-law was taken by authorities in around April 2014 and, in order for him to be released, she would “have to go back there or he had to admit he was bringing in weapons or smuggling weapons”.

7    For reasons unknown, the delegate’s decision stated (at p 16):

The applicant’s written statement noted that her sister was smuggling weapons, but her brother in law does not want to confess to that because it will result in serious punishment. At interview, the applicant stated “I have to go back there or he had to admit that he was brining [sic] weapons or smuggling weapons”. The applicant did not provide additional information concerning this claim. The applicant does not have a profile that would support the claimed adverse attention by the Sri Lankan authorities. There is no evidence to suggest that the Sri Lankan authorities would benefit or gain vital information by arresting her brother-in-law. The applicant’s brother in law’s arrest is more than likely connected to his wife’s weapon smuggling and not linked to the applicant. I do not accept that the Sri Lankan authorities asked about the applicant’s whereabouts, as mentioned.

(Emphasis added.)

8    The Minister concedes, and the primary judge also accepted (at [40]-[41]), that there was no truth to the first line of that passage. The delegate either misconstrued or misapprehended the appellant’s claim.

9    That same misapprehension or misconstruction flowed through to the first decision of the Tribunal, which was subsequently quashed.

10    The matter having been remitted to the Tribunal, in its second Decision, the Tribunal said (Decision at [123]):

The Tribunal asked the applicant about the arrest of her brother-in-law, noting that there had been significant discussion about it with the Delegate and the First Tribunal. Her brother-in-law had been arrested in 2014 and, according to the applicant, was still in detention. The Delegate had also identified that the applicant’s sister was smuggling weapons. Asked to offer an opinion as to why her brother-in-law had been arrested, the applicant stated that she really did not know much more. However, the Tribunal noted that the applicant had told the delegate that her family held her responsible for her brother-in-law being arrested.

(Emphasis added.)

11    The Tribunal found (Decision at [175]-[176]):

There was no evidence that her brother-in-law who has disappeared was connected to the LTTE, or that his disappearance was so linked or linked to her. The Tribunal notes the evidence that his wife (the applicant’s sister) was involved in trading weapons. The Tribunal is not satisfied that this brother-in-law’s disappearance has in the past, or will in the future, cause the Sri Lankan authorities to view the applicant with suspicion.

The Tribunal finds that, even if the applicant’s brother-in-law was connected to the LTTE, the Sri Lankan authorities have not viewed the applicant’s other family members as persons of adverse interest as a result of their affiliation with that brother-in-law. Taking into account their continued residence in Sri Lanka, with no known adverse consequences, the Tribunal finds there is no real chance of the Sri Lankan authorities targeting her due to any connection she may have with the brother-in-law.

(Emphasis added.)

12    The appellant submits that the Tribunal’s “noting” of the purported evidence that her sister was involved in trading weapons was a critical step in its ultimate conclusion that there is no real chance of the Sri Lankan authorities targeting her due to any connection she may have with her brother-in-law.

13    The primary judge, at [41], correctly with respect, identified the question at issue to be whether the Tribunal’s “noting” of the non-existent evidence as to the appellant’s sister’s involvement in weapons smuggling tainted the ultimate conclusion reached by the Tribunal. The primary judge held that it had not (at [46]). Again, with respect, he was correct to do so. This is not a factual error that affects the claim in the same category as that identified by the High Court in Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17; 423 ALR 1 such that it rises to jurisdictional error.

14    The appellant had never made a claim that involved her sister. Her claim had always been, as the primary judge paraphrased (at [43]), that after she arrived in Australia, her brother-in-law was arrested and told to confess to weapons smuggling. Although he was not guilty of that, he would not be released unless he confessed or the appellant returned to Sri Lanka. For this reason, the appellant claimed to be fearful of returning to Sri Lanka because she feared that she would be targeted by the authorities. In other words, her claim was never based on any conduct, alleged or otherwise, on the part of her sister. Consequently, the mistaken reference to her sister smuggling or trading weapons was immaterial to the claim on which she had based her application for protection.

15    The Tribunal did not import that mistake into its ultimate conclusion. That conclusion was based on its finding that there was no evidence that the appellant’s brother-in-law was connected to the LTTE, nor that his disappearance was linked to the LTTE or to the appellant. Further, the Tribunal found that even if her brother-in-law was connected to the LTTE, the Sri Lankan authorities had not viewed the appellant’s other family members as persons of adverse interest as a result of their affiliation with him – I interpolate that that finding necessarily extends to the appellant’s sister.

Disposition

16    No error having been identified in the reasons of the primary judge, the appeal must be dismissed with costs.

Associate:

Dated:    18 August 2025