Federal Court of Australia

AXR17 v Minister for Immigration and Citizenship [2025] FCA 1000

ORDERS

THE COURT ORDERS THAT:

1.    The name of first respondent be changed to Minister for Immigration and Citizenship.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    The appellant is a citizen of Sri Lanka, who arrived in Australia by boat on 28 September 2012 as an unauthorised maritime arrival. Three and a half years after his arrival, in January 2016, the appellant applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa. On 16 December 2016, a delegate of the first respondent refused to grant the application. The delegate’s decision was referred to the Immigration Assessment Authority and, on 3 February 2017, the Authority affirmed the delegate’s decision. On 17 June 2021, the appellant filed an amended application for judicial review of the Authority’s decision, which was dismissed by the then Federal Circuit Court of Australia on the same date. Reasons were published on 22 September 2021: AXR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1353 (primary judgment or J).

2    The appellant lodged a notice of appeal on 15 July 2021, accepted for filing on 21 July 2021. which contained one ground of appeal, that the appellant was yet to receive “reasons for the judgment, hence [he is] unable to write a detailed grounds of appeal at this stage”. It is apparent that the appellant lodged the notice of appeal himself. Whilst he had been represented below, it did not appear that he was represented when he lodged the appeal. Published reasons were not provided to the appellant’s former solicitor and the first respondent Minister until 22 September 2021. On 1 July 2025, the Registry informed the appellant of where he could locate the primary judgment in the Appeal Book and gave him until 11 July 2025 to file any amended notice of appeal articulating grounds. The appellant did not do this.

3    At hearing the appellant submitted that his appeal ought succeed, without identifying any error in the primary judge’s reasons, on the basis of all the problems he had experienced whilst in Sri Lanka and his real fear of harm should he return to Sri Lanka. The appellant sought to rely on evidence, giving rise to his current fear of harm, which included three documents from late 2021 and 2024 regarding the Sri Lankan Army’s apparent recent interest in him and other documents. This Court’s jurisdiction is very confined, it cannot consider the merits of the appellant’s claim for protection (as it was at the time of consideration by the Authority or later by the primary judge) or now. The Court can only correct error arising from the primary judge’s reasons (which include correction of any jurisdictional error not found by the primary judge which arose in the Authority’s exercise of power).

4    For the reasons which follow, the appeal must be dismissed.

5    The Authority considered each of the claims made by the appellant as to why he would face a real chance of serious harm on return to Sri Lanka. The Authority accepted various integers of the appellant’s claims, including (without being exhaustive) that the appellant was detained for up to three days and was interrogated, tortured and accused of providing information to the LTTE about the whereabouts of the army officer that was shot: A[23] and that the appellant was required to report to the army camp once a week: A[24]. The Authority however, did not accept other aspects of the appellant’s claims and found them to be inconsistent and implausible.

6    Given the passage in time since the appellant’s departure from Sri Lanka (being five years at the time of the Authority’s decision), and the improvement of Sri Lanka’s circumstances, as evidenced by the country information before the delegate, the Authority considered that it is not only less likely that the appellant will be subjected to harassment and torture, but that also, the accompanying threat of further questioning is less likely given the events which formed the basis for the appellant’s original questioning by the army were now more than 10 years old: A[37]. Further, the Authority was not satisfied that the appellant would face a real chance of serious harm on the basis of being a returned asylum seeker or by reason of his illegal departure: A[45].

7    The Authority, having considered the appellant’s claims cumulatively, found that they do not give rise to a real chance of serious harm and found that the appellant did not meet the requirements and definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) and did not meet the criteria in section s 36(2)(a) of the Act. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s return to Sri Lanka, there is a real risk the appellant will suffer significant harm. The Authority found that the appellant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review: A[46]–[47].

8    In an amended application filed in the FCCA on 17 June 2021, the appellant raised one narrow ground of review, on the basis of the purported misapplication of the test prescribed under s 5J of the Act with respect to the Authority’s conclusion, at PJ[37], that there was not a real chance of the appellant being persecuted if he returned to Sri Lanka. The primary judge found that the Authority’s decision did not reflect any error of the kind identified by the appellant’s counsel: J[28]. The primary judge dismissed the amended application: J[30]. There is no need to consider this judgment in any detail given no ground of appeal is made challenging any aspects of the judge’s reasons.

The present appeal

The appellant’s application to rely on fresh evidence is refused

9    At the hearing before me, the appellant applied to rely on fresh evidence, which were contained in a Google drive link, comprising numerous documents, which the appellant agreed at hearing could be categorised in the following way:

(a)    ATO notices of assessment from 2016 to 2024 and a tax receipt dated 21 August 2017;

(b)    A photograph of the appellant in hospital and various medical certificates, including that the appellant suffers, as at May and June 2025, from depression (or a severe depressive disorder) and PTSD;

(c)    A document suggesting that the appellant had donated blood;

(d)    An undated purported translation from the “Sooriyan FM News”;

(e)    A number of character references, including a character reference provided by Simple Air Conditioning Pty Ltd (a former employer of the appellant) (dated 14 May 2025), and a letter written by the appellant, to the Minister;

(f)    Various pay slips and employment documents;

(g)    A photograph of the appellant outside Metella Road Public School, wearing an Australian Labor Party t-shirt for the Hon. Andrew Charlton MP;

(h)    Photocopies of various identity cards; and

(i)    Three translated documents, from November 2021, July 2024 and December 2024, purportedly from the Criminal Investigation Division of the Sri Lankan army.

10    With respect to the last category, there was first, a translation of a letter, purportedly addressed to the appellant at an address “Main road, Murakoddanchenai”, dated 18 November 2021, signed “illegibly” from an Officer-in-Charge, of the Gang Robbery Investigation Division in Colombo. No detail is given as to why he was being purportedly summonsed (when he had left Sri Lanka 9 years earlier); secondly, a translation of a letter, “To whom it may concern”, dated 9 July 2024, purportedly identifying the appellant, and saying that a “formal investigation should be conducted” without any specificity; and thirdly, a translation of what appeared to be an internal police document, dated 10 December 2024, between two police stations, requiring on the same day that the appellant attend the “Old Police Headquarters, Colombo” (together the “CID documents”).

11    For the reasons which follow, I rejected that evidence.

12    The Court has power to admit fresh evidence on appeal: see s 27 of the Federal Court Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. Rule 36.57 of the Federal Court Rules 2011 (Cth) sets out the requirements for an application that the Court receive fresh evidence on appeal. As observed by a Full Court of this Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 per Markovic, Thomas and Halley JJ (at [12]):

In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).

13    To the extent that the Court is able to allow fresh evidence, it must be evidence which is relevant to the question before the Court, that is whether the primary judge erred in failing to find the Authority’s exercise of its power was vitiated by jurisdictional error or the FCCA’s exercise of its power was otherwise vitiated by jurisdictional error. The appellant’s claims relate to the decision by the Authority to affirm the decision of the Minister’s delegate to refuse to grant the appellant a protection visa. It is apparent that, by this appeal, the appellant is maintaining a challenge to the Authority’s decision. The appellant essentially submitted that on the basis of the evidence there is a real chance he will suffer serious harm if returned to Sri Lanka.

14    The question of whether the Authority’s decision was made within power as conferred by the Act, is answered by reference to the circumstances as they existed at the time the Authority exercised that power: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; 289 FCR 164 at [28] and [29].

15    As is apparent from the purported police documents above, they post-date, by a number of years, the Authority’s decision. The evidence must be relevant to the matters attending my decision rather than subsequent events that might be relevant to a new application to the Minister. One is not able to impugn the Authority’s decision by reason of events (even if capable of being proven) which post-date the Authority’s decision.

16    The other documents, again, post-date the Authority’s decision and therefore were not (and could not have been) before the Authority or the primary judge. In any event they concern the merits of any future application for the grant of a visa but have no relevance as to the issues required to be determined on appeal.

The appeal must fail because no cogent ground of appeal was made

17    The appellant was asked at hearing what was the basis upon which he sought to impugn the primary judge’s reasons. The appellant identified no error in the primary judge’s reasons but rather referred to his fear of harm, given the past problems he had faced and by reference to his concerns of recent interest from the Army (as identified in the documents which I did not allow him to tender).

18    The appellant’s submissions were in the same vein. The appellant made various submissions as to why it should be accepted that he will face serious harm if returned to Sri Lanka by his conduct (the fact that he has been in Australia for many years without his family “doing nothing”) and by virtue of what is known about the Sri Lankan army and the CID documents (again a reference to documents not admitted into evidence). The appellant made various submissions as to why this fear has led to him being prescribed medication and having very serious mental health issues. Further the appellant made submissions as to why his real fear of harm arises from past acts by the Army and contemporary events.

19    This Court has no power to intervene, regardless of the merit of the appellant’s claims. It is only permitted to do so, upon the identification of error in the primary judge’s reasons. As is apparent from the above, the appellant, represented below, only raised a narrow point of error concerning A[37]. The appellant did not reagitate that claim before this Court. The appellant was not able to articulate any cogent ground of appeal.

20    As stated above, the appellant is not able to rely on events which post-date the Authority’s exercise of power in order to impugn its reasons. The Minister explained, during the hearing, as to the options available to the appellant to apply to the Minister for a new visa and the ability for the appellant to rely on the new information provided to this Court.

Conclusion

21    Accordingly, the appeal must be dismissed and the appellant required to pay the Minister’s costs.

Associate:

Dated:    22 August 2025