Federal Court of Australia

GMA18 v Minister for Immigration and Citizenship [2026] FCA 1694

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs, fixed in the sum of $3,775.

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 decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): GMA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1179 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellant a protection visa.

2    For the following reasons, the appeal is dismissed with costs.

background

3    Arrival in Australia (Aug 2014): The Appellant is a citizen of Sri Lanka. She arrived in Australia on 12 August 2014 on a visitor visa (J [9]).

4    Application for protection visa (Sep 2014): On 10 September 2014, the Appellant applied for a protection visa (J [10]). The primary judge summarised her claims at J [11], and the Minister correctly submitted that her claims raised four main points:

(a)    The first and main point was her claims to fear harm on the basis of her involvement in JVP (Janatha Vimukthi Peramuna), a political party. This aspect included her brother’s involvement with the JVP, and the Appellant claimed that he was abducted by the army in 1989 and was shot.

(b)    The second point was a claim that she had contact with “Blue Force”, which she said was an unofficial organisation that carried out underworld activities in support of the President’s son, and which wanted to destroy people associated with the JVP.

(c)    The third point was claims to fear harm from a Mr Sumidh Sanjeewa, a man who she previously had a relationship with, and to fear harm from Mr Sanjeewa’s ex-wife.

(d)    The fourth point was a claim to fear economic harm on her return to Sri Lanka.

5    Delegate refuses application (Dec 2016): On 7 December 2016, a delegate of the First Respondent (the Minister) refused the application for a protection visa (J [13]). The delegate accepted that the Appellant was involved with the JVP, and was prepared to accept that her brother may have been abducted. However, based on country information and the Appellant’s evidence, the delegate did not accept that there was a real chance of the Appellant being persecuted on the basis of her involvement with the JVP, or that there was a real risk that she would be subject to significant harm.

6    Application to AAT (Dec 2016): On 23 December 2016, the Appellant applied to the Tribunal for merits review of the delegate’s decision (J [16]).

7    AAT refuses application (Nov 2018): On 28 November 2018, the Tribunal decided to affirm the decision not to grant the Appellant a protection visa. That decision was notified to the Appellant’s representative on 29 November 2018. In outline:

(a)    The Tribunal accepted that the Appellant became involved with the JVP when she was around 17 or 18 (Tribunal reasons (AAT) [32]). However, the Tribunal did not accept that the Appellant left Sri Lanka in 2014 because of problems she was experiencing due to her JVP activities (AAT [33]). The Tribunal discussed the three occasions raised by the Appellant where she claimed that the Sri Lankan police refused to protect her because of her and her family’s connection to the JVP. The Tribunal accepted that in 1989 the police refused to accept a complaint that the family’s house was robbed, and accepted that the family home may have been stoned in 2009 or 2010. The Tribunal also accepted that the Sri Lankan police refused to act when the Appellant referred Mr Sanjeewa’s ex-wife to the police, but did not accept that this had anything to do with the Appellant’s political activities or her support for the JVP. Similarly, the Tribunal accepted that the Appellant experienced harassment by villagers and work colleagues while working as a teacher, but found that this was for reasons to do with her then relationship with Mr Sanjeewa, not her political activities or support for the JVP (AAT [43]). Based on country information and the Appellant’s evidence, the Tribunal found that electoral violence had been sporadic and relatively isolated in recent years. The 2015 and 2018 elections were reported to have been peaceful and orderly and relatively free and fair, and the JVP has been recognised as a legitimate political party since the 1990s (AAT [45]).

(b)    The Tribunal accepted that the Appellant’s brother had in the past been targeted for harm because of his political activity with the JVP, but found that the most serious harm occurred when the JVP was not recognised as a legitimate political party (AAT [46]). The Tribunal did not accept the Appellant’s claim that she could not properly do her job as a teacher because of her involvement with the JVP (AAT [47]). The Tribunal considered that her problems in Sri Lanka seemed to arise out of her relationship with a man called Sumidh Sanjeewa (who was married at the time) rather than her JVP activities (AAT [38]).

(c)    There was no country information about Blue Force or whether they are still active in Sri Lanka. The Appellant’s evidence was that she did not experience any difficulties with Blue Force when she was living in Sri Lanka. The Tribunal considered that the risk that the Appellant would be harmed by members of Blue Force if she returned to Sri Lanka (whether because of her relationship with Mr Sanjeewa, or her or her family’s JVP activities) was merely speculative (AAT [49]).

(d)    The Tribunal did not accept that the Appellant would face serious harm on her return by reason of her previous relationship with Mr Sanjeewa. While that relationship was violent in the past, the relationship had finished and Mr Sanjeewa was living in Australia. Six years had passed since the Appellant’s (invalid) marriage to Mr Sanjeewa, so the Tribunal did not accept there was a real chance of harm from Mr Sanjeewa’s ex-wife in Sri Lanka, or from other village or community members (AAT [52]-[53]).

(e)    As to claims of economic harm, the Tribunal accepted that the Appellant may not be able to return to her old school as a teacher, given the circumstances in which she left in 2014 (arising out her then relationship with Mr Sanjeewa). However, the Tribunal found that the Appellant holds a Diploma of Primary Teaching and worked as a teacher in several government schools between 2004 and 2011. Her brother, mother and four sisters remain living in Sri Lanka, and the Tribunal did not accept that the Appellant would be alone in Sri Lanka, or that her family would not support her, or that she would be unable to return to her village. The Tribunal did not accept that there was a real chance that the Appellant would be unable to find employment if she returned to Sri Lanka, meaning that it did not accept that the Appellant would suffer significant economic hardship such as would threaten her capacity to subsist (AAT [54]).

(f)    The Tribunal considered the Appellant’s claims cumulatively, and summarised its cumulative assessment as follows (AAT [55]):

I have accepted that the applicant is a 38 year old female from Mantara, Sri Lanka who supports the JVP and has engaged in election campaigning activities for the JVP on behalf of her brother and cousin. I have accepted she married a man whom she later discovered had not divorced his first wife and she continued that relationship with him for a time in Australia. I have accepted that she faced threats from his first wife who also disclosed her relationship to the applicant’s employer and others in her community causing her embarrassment and humiliation. I have accepted she may be unable to return to her old job as a teacher in Mantara, but I have not accepted she will be unable to find other employment or that her family would refuse to support her or that she would suffer significant economic hardship such as would threaten her capacity to subsist.

(g)    For these reasons, the Tribunal did not accept there to be a real chance that the Appellant would be targeted for harm by Sri Lankan authorities, opposing political parties or any other person or group on the separate or cumulative bases of her actual or imputed political opinion as a JVP supporter or for reasons of her former relationship with Sumidh Sanjeewa (AAT [56]). For similar reasons, the Tribunal did not accept that there was a real risk that the Appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Sri Lanka (AAT [59]).

8    Judicial review application (Dec 2018): On 13 December 2018, the Appellant applied to the previous Federal Circuit Court for judicial review of the Tribunal’s decision. That application contained the following grounds of review:

1.     The Administrative Appeals Tribunal did not afford me procedural fairness[.]

2.     The Administrative Appeals Tribunal applied the wrong legal test.

9    Primary judge dismisses application (Jul 2025): On 25 July 2025, the primary judge dismissed the application for judicial review. The key part of his Honour’s reasons are as follows:

(a)    The Appellant sought to tender “health documents” and “mental health documents”, which had been obtained subsequent to the Tribunal hearing (J [37]). The primary judge declined to receive this material, because it post-dated the Tribunal’s decision and effectively invited the court below to undertake impermissible merits review (J [39]).

(b)    The Appellant contended that the Tribunal did not afford her procedural fairness, because (it was said) she had explained her “true story” to the Tribunal, and the Tribunal had a duty to look into her claims “more deeply” (J [55]). The primary judge held that the process followed by the Tribunal gave the Appellant every opportunity to put her case; for example, it was nearly two years between applying for merits review and the Tribunal hearing (J [57]-[58]). The primary judge also rejected an argument that the Tribunal had not properly considered the Appellant’s claims or ignored relevant claims. The Appellant complained that she was not given an opportunity to provide documentary proof that she was a member of the JVP; however, the primary judge held that the Tribunal accepted that the Appellant was a member of the JVP. The Tribunal did not accept the Appellant’s claim that the reason she left Sri Lanka in 2014 was because of her JVP activities. The primary judge held that this finding was open to the Tribunal to make, after considering the Appellant’s evidence comprehensively (J [59]-[60]).

(c)    The Appellant’s originating application contended that the Tribunal applied the wrong test. The Appellant was unable to explain what the alleged error was (J [62]). The primary judge held that it was apparent on the face of the Tribunal’s decision that it applied the correct legal test (J [64]).

(d)    At the hearing, the Appellant stated that there had been “subsequent” threats to her life. The primary judge held that these matters could not be considered by the Court (J [67]).

10    Notice of appeal (Aug 2025): On 8 August 2025, the Appellant lodged a notice of appeal. The grounds of appeal are as follows:

1.     [Appellant] thinks the order, which is based on the application, has a question of law and it should be investigated.

2.     [Appellant] has provided a lot of information and supporting documents for the Visa application to the ART and Federal Circuit Court. [Appellant] believes this information was not considered properly and was not granted a fair orders and judgement.

11    Appellant’s written submissions: The Appellant’s written submissions in this Court make the following arguments.

12    Procedural fairness: First, the Appellant contends that she was denied procedural fairness in the Tribunal. She submits that procedural fairness involves more than providing an opportunity to attend a hearing, but required that her evidence and the circumstances surrounding her claims be considered fairly, carefully and in their proper context. She submits that the Court should examine whether the Tribunal properly considered the combined effect of her circumstances when assessing her claims for protection (in effect, that the Tribunal did not properly consider the risk of harm arising from her political opinion, her family background and her previous experiences).

13    Failure to properly consider evidence: Second, the Appellant contends that the Tribunal failed to properly consider her evidence. The Appellant acknowledges that the Tribunal referred to her written claims, her oral evidence and her brother’s evidence, but contends (in effect) that the Tribunal did not adequately assess the significance of the circumstances accepted by the Tribunal (such as the Appellant’s JVP membership), and that her claims should have been considered in light of her own circumstances and not determined “simply by comparing [her] political profile with that of [her] brother”.

14    Other submissions: The Appellant’s written submissions then set out her account of her political opinion and family background, her reasons for leaving Sri Lanka, and the failure of Sri Lankan authorities to provide protection. She submits that, although the Tribunal accepted her political involvement, it was necessary for the Tribunal to consider whether her past activities, family political history and the political circumstances created a risk of harm to her. She contends that the Tribunal’s conclusions on the Appellant’s reasons for coming to Australia “did not adequately recognise that she had more than one reason for leaving Sri Lanka”. She also submits (in effect) that the Tribunal did not properly consider the Appellant’s evidence concerning the police response to the attack on her family home in 2010 and the Appellant’s ability to obtain protection if returned to Sri Lanka. The Appellant also refers to the hardship she would face if returned to Sri Lanka in obtaining employment, that she has no reasonable expectation that her family will provide her with support, and the fact she has lived in Australia for 12 years.

15    These arguments are different from those raised in the notice of appeal, but they are broadly similar to the arguments put to the primary judge, and the Minister has been given sufficient notice to be able to respond. She does not require leave (permission) to raise these points, and I would not insist on an unrepresented litigant amending her notice of appeal to include them.

analysis

16    Two general comments: As the Appellant does not have a lawyer acting for her in this appeal, I begin with two general comments.

17    Court asks only whether the Tribunal decision was lawful: First, as the primary judge explained (J [42]-[43], [49]), a court in judicial review proceedings does not determine whether the Tribunal’s decision was correct on the factual merits. Instead, the only issue is whether the Tribunal’s decision was lawfully made. The specific issue before the primary judge was whether the Tribunal’s decision contained a serious legal error, called a “jurisdictional error”. On appeal, this Court asks whether the primary judge was correct to find that the Tribunal’s decision did not contain any 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).

18    Duty to make sure Court’s processes are fair: Second, a judge has a duty to ensure that a hearing is fair to all parties (that is, both appellants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court); Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court).

19    Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”. But I will consider whether any argument of substance arises squarely from the materials: 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).

20    Consideration of Appellant’s arguments: The Appellant’s arguments are answered by the first point set out above, that it is not the Court’s role to assess whether the Tribunal’s decision was factually correct. The Appellant’s arguments in her written submissions merely take issue with the correctness of the factual findings reached by the Tribunal.

    The Appellant accepts that she was given a hearing, and that the Tribunal referred to her written claims, her oral evidence and the evidence of her brother, but she says that the Tribunal did not “properly” consider her claims: see [12], [14] above. These arguments do not raise any arguable legal error by the Tribunal, and certainly no breach of procedural fairness. I agree with the primary judge that, on the material before the Court, the Appellant was given every reasonable opportunity to present her case.

    Further, the Tribunal expressly considered the cumulative effect of the Appellant’s various claims at AAT [55] and [56], so the argument that the Tribunal failed to consider the cumulative effect of her claims must be rejected: cf [12] above. And contrary to the Appellant’s argument, the Tribunal did not simply compare her political profile with that of her brother: cf [13] above.

    Any practical impediments to return (such as a difficulty in obtaining work and a lack of family support) are not relevant to the criteria for a protection visa (noting that the Tribunal considered the Appellant’s claims of economic harm at AAT [54]). Nor is the fact that the Appellant has now lived in Australia for 12 years: cf [14] above.

21    At the hearing, the Minister’s lawyer carefully went through the factual issues raised in the Appellant’s submissions, and explained where each of those issues had been dealt with in the Tribunal’s reasons. I accept the Minister’s submission that the Tribunal addressed the Appellant’s claims and that the findings it made were open to it.

22    Judgment has a “question of law”? Turning to the notice of appeal, the first ground of appeal is that the judgment under appeal “has a question of law and it should be investigated”. As noted, the question in this appeal is whether the primary judge was correct to find that the Tribunal’s decision did not contain any jurisdictional error. As expressed, this first ground of appeal does not raise any arguable error by the primary judge, or jurisdictional error by the Tribunal.

23    The Minister, as model litigant, submits that this ground could be interpreted as meaning that the primary judge erred by not accepting the grounds of review raised in the FCFCOA. I accept the Minister’s submission that the primary judge was correct to dismiss those grounds, for the reasons his Honour gave: see [9](b) and (c) above.

24    Orders and judgment not fair? The Appellant’s second ground of appeal is that she provided a lot of information and supporting documents for the visa application to the Tribunal and the FCFCOA, that this information was not considered properly, and she was not granted fair orders and judgement. On its face, this argument impermissibly seeks to revisit the factual merits of the Tribunal’s decision (and possibly that of the primary judge). Again, however, the only issue in judicial review proceedings is whether an administrative decision was lawfully made, not whether the court considers that the administrative decision was factually correct. For that reason, the primary judge correctly (with respect) did not permit the Appellant to provide new information to the court below that sought only to challenge the factual correctness of the Tribunal’s decision, and did not have regard to events that had occurred since the Tribunal’s decision: see [9](a) and (d) above. The Appellant’s second ground of appeal must also be rejected.

25    No other obvious error in the Tribunal’s decision: For completeness, and because the Appellant does not have a lawyer, I have considered whether there is any obvious error in the Tribunal’s decision or in the primary judge’s decision: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). I am satisfied that there is not any obvious error in either decision.

conclusion

26    For these reasons, the appeal is dismissed.

27    Costs: The usual position is that the unsuccessful party pay the legal costs of the successful party. A person’s financial capacity to pay costs is not relevant to whether costs should be awarded: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25], [35] (the Court).

28    The Minister seeks costs fixed in the sum of $3,775. The Court has power to award costs in a fixed sum: see Federal Court of Australia Act 1976 (Cth), s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In an appeal from a decision of the FCFCOA in respect of a migration decision, the Federal Court Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,648), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,907): see Federal Court Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than both of these amounts. I am satisfied that this amount is reasonable and proportionate, having regard to the nature and complexity of this proceeding: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J).

Associate:

Dated:    10 November 2026