Federal Court of Australia

BRN17 v Minister for Immigration and Citizenship [2025] FCA 1215

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The Appellant pay the First Respondent’s costs, fixed in the sum of $6,500.

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

REASONS FOR JUDGMENT

HILL J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2): BRN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 397 (J). The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (IAA), which had affirmed a decision to refuse to grant the Appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2    For the reasons set out below, the appeal is dismissed with costs.

Background

3    Arrival in Australia (Aug 2012): The Appellant is a Christian Tamil from Jaffna, in the north of Sri Lanka. He first arrived in Australia in August 2012 as an unauthorised maritime arrival (J [1]).

4    Application for visa (Oct 2015): On 12 October 2015, the Appellant applied for the visa (in accordance with an invitation issued on 9 September 2015). The application attached a statutory declaration from the Appellant and other supporting documents (J [2]-[3]). The Appellant’s claims included that he was interrogated and physically assaulted by two Criminal Intelligence Division (CID) officers in 2012, and was threatened on two occasions by members of the Karuna Group in February 2012, after which he sought refuge in a church seminary for two months before moving to his in-laws’ house (see J [3](f)-(i)). He claimed that he would be killed by the Karuna Group or harmed by the CID if he returned to Sri Lanka (J [3](j)). He claimed that the risk was increased by the facts that he had departed Sri Lanka illegally, and had claimed asylum in Australia.

5    Delegate refuses visa (Sept 2016): On 22 September 2016, a delegate of the Respondent (the Minister) refused to grant the Appellant the visa (J [8]).

6    Referral to IAA (Sept-Oct 2016): On 28 September 2016, the delegate’s decision was referred to the IAA under Pt 7AA of the Migration Act 1958 (Cth). On 19 October 2016, the Appellant’s representative provided the IAA with written submissions, a statutory declaration, and supporting documents (J [9]-[10]).

7    IAA affirms refusal decision (Mar 2017): On 24 March 2017, the IAA affirmed the delegate’s decision not to grant the Appellant the visa (J [11]). In summary, the IAA reasoned as follows:

    The IAA found that the Appellant’s voluntary return to Sri Lanka four times between 1993 and 2011, his unhindered entry and departure through immigration controls and his extended stay on each occasion weighed strongly against him having any genuine fear of harm from Sri Lankan authorities or Tamil paramilitary groups (IAA [12]).

    The IAA accepted that the Appellant was harassed and physically assaulted by CID officers in January 2012, but found that this was an isolated, random event. The Appellant was not arrested, detained or placed on reporting conditions as a result of this incident, indicating strongly that the CID did not consider that he had Liberation Tigers of Tamil Eelam (LTTE) links, had no ongoing interest in him and that he did not have a profile of concern (IAA [13]).

    The IAA accepted that the Appellant may have been perceived as wealthy and targeted for extortion when he opened his business. However, the IAA was not satisfied that his fear of facing harm from the Karuna Group on return to Sri Lanka now is well-founded (IAA [14]).

    The Appellant claimed that he would be targeted by the Sri Lankan authorities on return to Sri Lanka on account of his Tamil ethnicity and presumed support of the LTTE (Tamil Tigers) (IAA [15]). The IAA did not accept that the Appellant faced a real chance of harm for this reason. He was away from Sri Lanka for much of this civil conflict, as he lived in Qatar from 1993 to 2011 (IAA [16]). The IAA found that there was no credible evidence before it that the Appellant was ever a member or supporter of the LTTE, and no credible evidence that he was suspected of being so after he returned to Sri Lanka from Qatar in 2011 (IAA [18]; see also [36]). The IAA considered that the Appellant did not face a real chance of harm from Sri Lankan authorities, including the CID, on account of any imputed links to the LTTE (IAA [20]).

    The IAA accepted that the Appellant may fear harm on return to Sri Lanka on account of his Tamil race, but the IAA was not satisfied that he would face a real chance of harm on the basis of being a Tamil or a Tamil from Sri Lanka’s north (IAA [21], [22]-[26]).

    The IAA accepted that, as the Appellant departed Sri Lanka illegally, he may be charged under Sri Lankan law and may be detained for a short period. However, the IAA found that this would not amount to “serious harm”, and further that the law applied to all Sri Lankans and therefore did not amount to persecution within the meaning of the Act (IAA [33]-[35]).

    Essentially for the same reasons, the IAA concluded that the Appellant did not face a real risk of significant harm for the purposes of the complementary protection criterion (IAA [40]-[44]).

8    Application for judicial review (Apr 2017): On 20 April 2017, the Appellant applied to the Federal Circuit Court (as it then was) for judicial review of the IAA’s decision (J [12]). The Appellant was legally unrepresented. The application contained four grounds (J [41]). Relevantly to the appeal, those grounds included:

    The IAA has not assessed the Appellant’s integer claims of being a Tamil from the north of Sri Lanka being perceived with political opinion against the government of Sri Lanka (ground 1).

    The IAA has not assessed the Appellant’s claim of being persecuted for his religion, being a Christian of Roman Catholic faith (ground 3).

9    FCFCOA dismisses application (May 2023): On 16 May 2023, the primary judge dismissed the application for judicial review, with costs. The Appellant indicated to the primary judge that he had not studied the material from the Minister, and did not understand what mistakes the IAA had made. Further, the Appellant told the primary judge that there was nothing that he could say and that the decision was ultimately in the Court’s hands (J [50]).

10    In summary, the primary judge reasoned as follows in relation to grounds 1 and 3 before that Court:

    The primary judge stated generally that, where an applicant is unrepresented and may not have adequate knowledge or the ability to prepare for and understand what is required of them, the Court will read their grounds of review as broadly as possible and, when doing so, remain astute to the possibility of legal error in the IAA’s decision (J [52]).

    On ground 1, the primary judge read the Appellant’s concern to be that the IAA did not assess the significance of the fact that the Appellant is of Tamil ethnicity from the north of Sri Lanka and the fact that those who identify in that way are harmed because they are perceived to be connected to the LTTE (and, as such, are likely to harbour anti-government sentiment) (J [56]). The primary judge stated that the IAA “clearly assessed the [Appellant]’s claims that he would be harmed on the basis of the fact that he was a Tamil from the north of Sri Lanka who would be perceived as harbouring pro-LTTE political opinions against the government” (J [57]). The primary judge then set out passages from the IAA’s reason to demonstrate that point (J [58]-[59]). The primary judge stated that the IAA’s assessment was based on the country information before it, and that it was a matter for the IAA as to which country information it looks at and the weight it places on that information (J [60]). To the extent that the Appellant suggested that the IAA’s conclusions were unreasonable, the primary judge disagreed (J [61]). The IAA assessed and ultimately relied on probative material, resulting in conclusions that were reasonably drawn (J [65]). The primary judge concluded: “No error arises in relation to ground 1, read broadly” (J [66]).

    On ground 3, the primary judge stated that the Appellant does identify as a Christian of Roman Catholic faith in the materials before the Department. In particular, the Appellant stated in his statutory declaration that, following an alleged incident with three Karuna Group members, he visited his Catholic priest and then hid in the church seminary for two months (J [74]). However, the primary judge held (J [75]):

It cannot be said, however, on the basis of this information that the [Appellant] expressed any fear whatsoever of harm arising from his identification as a Christian of Roman Catholic faith. No such claim is expressly advanced. Nor does it arise squarely on the materials.

11    Appeal (Jun 2023): On 5 June 2023, the Appellant filed a notice of appeal in this Court. He is unrepresented in this Court. There are two grounds of appeal:

1.    The learned judge at paragraph 57 of the reasons for judgment accepted that the appellant would be harmed on the basis of the fact that he was a Tamil from the North of Sri Lanka who would be perceived as harbouring pro-LTTE political opinions against the government. The learned judge then erred at paragraph 66 of the reasons for judgment that “No error arises in relation to ground 1, read broadly”. Such a finding was capricious, without common sense or “plainly unjust”.

2.    The learned judge at paragraph 74 of the reasons for judgment inter alia accepted the appellant identified as a Christian of Roman Catholic Faith and he explained an alleged incident with three Karuna Group members resulted in him hiding in the Church seminary for two months. The learned judge then made a finding at paragraph 75 of the reasons for judgment “It cannot be said, however, on the basis of this information that the applicant expressed any fear whatsoever of harm arising from his identification as a Christian of Roman Catholic Faith”. Such finding was so unreasonable and triggered jurisdictional error.

12    Adjournment of hearing (Jul 2025): The appeal was initially listed for hearing on 17 July 2025. However, on 11 July 2025, Victoria Legal Aid (VLA) advised that it was providing the Appellant with limited legal assistance, and by consent the hearing was adjourned until 2 October 2025, and new orders made for the filing of written submissions. The Appellant did not file any submissions in accordance with those orders. In response to a query from chambers, VLA advised on 12 September 2025 that it provided limited legal assistance to the Appellant and that assistance had come to an end. At a case management hearing on 18 September 2025, the Appellant stated that he did not wish to file any written submissions.

13    Hearing (Oct 2025): At the hearing on 2 October 2025, the Appellant represented himself with the assistance of an interpreter. He stated that he had nothing to say, and that he had prepared his appeal without a lawyer.

consideration

14    General principles: As the Appellant is legally unrepresented, it is convenient to begin with two general principles.

15    Court not concerned with merits of Tribunal’s decision: First, it is worth highlighting the relatively confined function of the courts in judicial review proceedings. As the primary judge explained (see J [49]), the issue before his Honour was whether the IAA’s decision contained a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid”): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ). In this appeal, the issue is whether the primary judge was correct to find that the IAA’s decision did not contain jurisdictional error: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing); CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [3] (the Court). Crucially, the issue before the primary judge, and before me, is not whether the IAA’s decision is correct on its merits.

16    Another constraint is that the lawfulness of the IAA’s decision is determined on the circumstances as they existed at the time of its decision: see, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28], [38] (the Court); NZA v Minister for Immigration [2013] FCA 140; (2013) 140 ALD 555 at [111] (Kenny J); Tariq v Minister for Immigration and Border Protection [2018] FCA 1409 at [7] (Perram J). That is, any change in circumstances that has occurred since the IAA made its decision (such as a change in the circumstances in Sri Lanka) is not relevant to whether the IAA’s decision was lawfully made.

17    Duties to unrepresented litigants: Second, the Court’s overriding duty to ensure a fair trial for all parties requires the Court to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); see also Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).

18    I will therefore consider whether any argument of substance arises squarely from the materials, and will not confine my attention strictly to the Appellant’s grounds of appeal: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-[10] (Colvin J); BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35], [38] (Wheelahan J).

19    The Appellant’s arguments will be considered with these general principles in mind.

20    Ground 1 – whether J [66] is capricious in light of J [57]: Ground 1 contends, in substance, that there is a contradiction between the primary judge’s reasons in J [57] and J [66]. It is said that the primary judge at J [57] “accepted that the appellant would be harmed on the basis of the fact that he was a Tamil from the north of Sri Lanka who would be perceived as harbouring pro-LTTE political opinions against the government”, but then rejected ground 1 in the court below at J [66]. This rejection of ground 1 below is said to be capricious, without common sense or “plainly unjust”.

21    Argument misunderstands J [57]: As the Minister submits, the Appellant’s argument proceeds on a misunderstanding of what the primary judge meant in J [57]. To understand that paragraph in context, his Honour stated (italics in original, bolding added):

[56]    Without assistance from the applicant, the Court reads the applicant’s concern to be that the IAA did not assess the significance of the fact the he is of Tamil ethnicity from the North of Sri Lanka and the fact that those who identify in that way are harmed because they are perceived to be connected to the LTTE (and, as such, are likely to harbour anti-government sentiment).

[57]    The IAA clearly assessed the applicant’s claims that he would be harmed on the basis of the fact that he was a Tamil from the North of Sri Lanka who would be perceived as harbouring pro-LTTE political opinions against the government.

22    It can be seen that the primary judge in J [57] is merely setting out the basis on which the IAA assessed the Appellant’s claims, and is not purporting to make any findings about those claims. It is therefore not correct to say that the primary judge in J [57] accepted the Appellant’s claims that he would be harmed on the basis that he was a Tamil from north Sri Lanka who would be imputed with pro-LTTE views. Ground 1, as put, must be rejected.

23    No error in reasons for rejecting ground 1 below: Given that the Appellant is legally unrepresented, I have also considered whether there is any obvious error in the primary judge’s reasons for rejecting the Appellant’s ground 1 in the court below: cf COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); BNM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1433 at [23] (Colvin J). That ground contended more broadly that the IAA had not considered the cumulative effect of the Appellant’s claims.

24    However, the primary judge was correct to reject ground 1, for the reasons given.

    The IAA expressly considered a claim that the Appellant feared that he would be targeted by the Sri Lankan authorities on return to Sri Lanka on account of his Tamil ethnicity and presumed support of the LTTE (IAA [15]). In assessing that claim, the IAA referred expressly to the fact that the Appellant’s home area is an area previously controlled by the LTTE; that is, in Sri Lanka’s north (IAA [16]).

    The IAA found that there was no credible evidence that the Appellant was suspected of being a member or supporter of the LTTE after he returned to Sri Lanka in 2011. Although he was harassed by the CID in 2012, the fact that he was not arrested or detained strongly indicated that the CID had no ongoing interest in him and did not consider that he had LTTE links (IAA [18]). That finding is repeated in IAA [36].

    The IAA therefore did consider the cumulative effect of a Tamil person from the north of Sri Lanka who is imputed with the opinion of support for the LTTE and thereby imputed with the opinion of opposition to the government.

25    Ground 2 – whether the finding in J [75] is legally unreasonable given J [74]: Ground 2 contends that the primary judge’s conclusion in J [75] is legally unreasonable, given the acceptance in J [74] that the Appellant is a Roman Catholic, and that his claims refer to him seeking refuge in a church after being threatened by the Karuna Group in 2012, and staying there for two months. This argument is closely related to ground 3 put to the primary judge, and should be rejected for the same reasons.

26    No legal unreasonableness if claim did not arise squarely: As the Minister submits, there is no legal unreasonableness in the primary judge’s reasoning on this point. The undisputed facts that the Appellant is a Roman Catholic, and once sought refuge in a church, does not amount to a claim that he feared persecution on the basis of his faith.

27    Any assessment of legal unreasonableness must take account of the extent of the IAA’s obligation to consider claims raised by the Appellant. Relevantly, the IAA was obliged to consider any claims made by the Appellant which, although not expressly made, clearly arose and were raised “squarely” on the face of the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[60], [68] (the Court); Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79] (the Court) (considering the position of the IAA in particular); CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 at [88] (the Court). A claim will be “squarely” raised where it is apparent on the face of the material before the Tribunal but “not [where it] depend[s] for its exposure on constructive or creative activity by the Tribunal”. Much will turn on the facts and circumstances of the case: NABE (No 2) at [58], [63]; CKT20 at [90].

28    A claim of persecution on the basis of Catholic faith was not squarely raised: In this case, the materials before the IAA did not squarely raise a claim that the Applicant feared persecution in Sri Lanka by reason of his Catholic faith.

    In his initial statutory declaration dated 6 October 2015, the Appellant referred to fears that he would be harmed by the Karuna Group if he did not pay money, and that he would be harmed by the CID because they are suspicious of Tamils, and claimed that the risk of being harmed was increased by the facts that he had departed Sri Lanka illegally and had claimed asylum in Australia. There is no mention of the Appellant fearing harm on account of his faith.

    Submissions by his representatives dated 11 February 2016 sent to the Department state the reasons that the Appellant fears persecution are his Tamil race; imputed political opinion of being a perceived supporter of the LTTE; and his membership of a particular social group of failed asylum seekers involuntarily returned to Sri Lanka. These submissions to the Department do not refer to the Appellant’s faith as a basis of fearing persecution or significant harm.

    Submissions by the Appellant’s later representatives dated 18 October 2016 sent to the IAA refer to the Appellant’s Tamil ethnicity, Tamils from northern Sri Lanka, perceived links to the LTTE, and forced return. These submissions to the IAA do not refer to the Appellant’s faith as a basis of fearing persecution or significant harm. Nor does the Appellant’s second statutory declaration dated 18 October 2016.

    The supporting materials include a letter from the Jesuit Refugee Service – Sri Lanka dated 10 September 2012, and a letter from Divine Mercy Shrine dated 2 November 2015. Neither of those letters, from Christian bodies, refers to the Appellant facing persecution or significant harm in Sri Lanka on account of his faith, or to Christians or Catholics in Sri Lanka facing persecution or significant harm on that basis.

29    It is significant that the Appellant was represented before both the Department and the IAA: a court may be more willing to consider that a claim is squarely raised on the materials in the case of an unrepresented party: CKT20 at [90]. When, as here, representatives have made submissions that clearly articulate well-recognised bases of persecution and of significant harm, it would be an unusual case when a delegate or the IAA is nevertheless required to consider a different basis of claim. It follows from the above that Ground 2 of the appeal must be rejected: there was no contradiction between J [74] and the conclusion in J [75]. For the same reasons, the primary judge was correct, with respect, to reject ground 3 in the court below.

30    Any other error? Given the Appellant is legally unrepresented, I have considered whether there is any obvious error in the decision of the primary judge, or in the decision of the IAA: see [2323] above. I am satisfied that there is no obvious error in either decision.

conclusion

31    For the reasons set out above, the appeal must be dismissed.

32    Costs: The Minister seeks costs fixed in the sum of $7,400. The Court has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29] (Griffiths J); Federal Court of Australia Act 1976 (Cth), s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,489), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,656): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than the latter amount, but is not reasonable and proportionate to the nature and complexity of the case: see Bitek Pty Ltd IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J). I would instead order costs fixed in the sum of $6,500.

Associate:

Dated:    2 October 2025