FUJ17 v Minister for Immigration and Citizenship - Extension of Time to Appeal Protection Visa Refusal Dismissed

Original Word Document (87.6 KB) Federal Court of Australia

FUJ17 v Minister for Immigration and Citizenship [2026] FCA 434

| Appeal from: | FUJ17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 349 |
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| File number(s): | NSD 654 of 2025 |
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| Judgment of: | PERRAM J |
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| Date of judgment: | 14 April 2026 |
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| Catchwords: | MIGRATION – application for extension of time to appeal from Federal Circuit and Family Court of Australia (Division 2) – where Immigration Assessment Authority affirmed the decision of the Minister’s delegate to refuse a protection visa – where applicant claimed to fear persecution from a political group – where Immigration Assessment Authority made findings which differed from the delegate, including as to credit, however reached same conclusion that the applicant faced no real risk of persecution if returned to home country based on country information at the time of decisions – whether extension of time should be granted |
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| Legislation: | Migration Act 1958 (Cth) ss 5H(1), 5J(1), 36(2)(a) |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 52 |
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| Date of hearing: | 16 March 2026 |
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| Solicitor for the Applicant: | Mr D Taylor of Sydney West Legal and Migration |
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| Solicitor for the First Respondent: | Mr M Wong of MinterEllison |
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| Counsel for the Second Respondent: | The second respondent filed a submitting notice save as to costs |
ORDERS

| | | NSD 654 of 2025 |
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| BETWEEN: | FUJ17

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | PERRAM J |
| DATE OF ORDER: | 14 APRIL 2026 |
THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed with costs.

2. The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1 On 13 March 2025, the Federal Circuit and Family Court of Australia (Division 2) made orders dismissing the applicant’s application for judicial review. Any appeal from those orders needed to be filed in this Court within 28 days. The time within which to appeal therefore expired at the close of business on 10 April 2025. No appeal was filed within that time. On 22 April 2025, the applicant’s solicitor, Mr Taylor, filed an application to extend the time to appeal which was accompanied by an affidavit from the applicant who said that mental health issues had initially prevented him from pursuing any appeal within the 28 day period. Mr‍ Taylor also filed an affidavit dated 28 April 2025 in which he furnished a copy of a proposed draft notice of appeal.

2 It is convenient to assume that the applicant’s explanation for his delay in pursuing his appeal is sufficiently satisfactory to warrant the extension being granted if the appeal otherwise has merit.

3 Turning then to the question of the appeal’s merit, the applicant’s proposed appeal has undergone several phases of development since its first articulation last year. Its final form was propounded in a document entitled ‘2nd Proposed Amended Draft Notice of Appeal’ a copy of which was helpfully attached to Mr Taylor’s amended written submissions dated 20 February 2026. The Minister did not object to the 2nd Proposed Amended Draft Notice of Appeal and his submissions addressed its substance.

Proposed ground 2

4 It is convenient for various reasons to begin with proposed ground of appeal 2 which is in these terms:

The Authority’s finding that the Applicant’s claims concerning the Karuna/TMVP were exaggerated and that the applicant would not face a real risk of harm in the foreseeable future was unreasonable.

5 By way of context: (a) the entity which ultimately decided the visa application was the Immigration Assessment Authority (the ‘Authority’) (although an initial decision was made by a delegate of the Minister); and (b) the applicant is a Sri Lankan national who, following his arrival in Australia, applied for a safe haven enterprise visa, a species of protection (or refugee) visa.

6 To be eligible for the visa the applicant needed to persuade the relevant decision-maker of several matters including, pertinently, that he was a person to whom Australia owed protection obligations because he was a refugee: Migration Act 1958 (Cth) s 36(2)(a). A person will be a refugee if they are unwilling (or unable) to avail themselves of protection in their own nation because of a well-founded fear of persecution: s 5H(1)(a). They will have a well-founded fear of persecution if they fear being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)), there is a real chance that if returned to their own country they would be persecuted for one of those reasons (s 5J(1)(b)) and the real chance relates to all areas of their own country (s 5J(1)(c)).

7 The applicant relied upon political opinion as one of several bases upon which he said he would face persecution if returned to Sri Lanka. He argued that he had been active in a political party in Sri Lanka known as the Tamil National Alliance (or ‘TNA’) and that as a result he feared harm from another political party in Sri Lanka known as the Tamil Makkal Viduthalai Pulikal (or ‘TMVP’). The TMVP split off from the Liberation Tigers of Tamil Eelam in around 2004 and remained a paramilitary organisation until around 2015. The TMVP has sometimes also been referred to as the Karuna Group. In these reasons, I will only refer only to the TMVP which should, where necessary, be understood as encompassing the Karuna Group.

8 The applicant has given three accounts of his persecution at the hands of the TMVP. The first was given at his entry interview held after he arrived in Australia. The second was contained in a statement he provided in support of his visa application some years later which is dated 25‍ July 2016. The third consists of answers to questions he was asked by the Minister’s delegate during an interview.

First account: The entry interview

9 The applicant left Sri Lanka on 6 September 2012 by boat and arrived at the Cocos (Keeling) Islands on around 26 September 2016: Appeal Book (‘AB’) at AB64. He was interviewed briefly on 6 October 2012 and then more substantively on 17 January 2013 whilst he was being held in immigration detention at the Curtin Immigration Detention Centre. During the 17 January 2013 interview (AB30), the applicant explained that he had left Sri Lanka because his life had been threatened by the TMVP. The threat came by letter and arrived after he had ignored an earlier warning from the TMVP not to work for the TNA in the upcoming provincial elections in 2012. At the interview, the applicant said that his grandfather had been a member of Parliament for the Tamil Alliance Party which, I assume, is a reference to the TNA. The applicant had been assisting his grandfather in the preparations for that election by doing chores such as putting up posters and what he compendiously described as computer work.

10 The TMVP had warned him to stop doing this work, but when he told his grandfather about the threat his grandfather had told him not to worry about it and the applicant therefore continued working. It was after he had ignored this initial warning that, on or around 17 or 18 August 2012, he had received the letter from the TMVP which threatened his life.

11 After he received that letter, he had decided to commit suicide but upon arriving at the village of Onthachimadam where he had proposed to carry this into effect, he had seen a boat on the beach surrounded by people which he was able to board: AB32. The boat was going to Australia. The events at the beach occurred on 6 September 2012: AB64. The small boat joined up with a larger boat off-shore which, following a passage of about 20 days, eventually arrived in Australian waters and was intercepted by the Australian Navy near the Cocos (Keeling) Islands on 26 September 2012: AB64.

12 An important feature of this first account of the applicant’s persecution is that it makes no mention of the applicant’s hand having been branded by a hot iron.

Second account: The statement of 25 July 2016

13 The applicant lodged an application for protection visa dated 25 July 2016 and attached to it a statement in support. In this statement, he clarified that the references to his grandfather in his entry interview were in error and that the member of Parliament whom he had assisted for the 2012 provincial elections was, in fact, his great uncle.

14 In this statement he said that provincial council elections were due to be held in the Eastern Province on 8 September 2012: AB92. A few months before the election he had begun to assist his great uncle in these elections: AB92. He did so by: distributing pamphlets around Batticaloa; printing posters and pasting them up on walls; and, going from door to door to campaign for the TNA (principally in the evenings).

15 The elections were also being contested by the TMVP. The applicant says in his statement of 25 July 2016 that its members would harass him and threaten him with knives and guns with the intent of stopping him from helping the TNA.

16 This version of events was corroborated by a letter which the applicant attached to his statement. The letter was dated 16 January 2013 and was from the man he identified as his great uncle. The letter indicated on its letterhead that the man in question was the member of Parliament for the Batticaloa District and was apparently signed by him. The letter was in the following terms:

To Whom It May Concern

Bearer [the applicant] of [an address in Periyakallar] is known to me for quite a period of long time.

He has been engaged in election campaign in the Parliamentary Election (2010) and in the Eastern Provincial Council Election (2012) in support of Tamil national alliance. Due to his active participation in supporting T.N.A, he faced threatens and harassment several times by the opponent groups.

As he has felt there is no safety for his life and limb, he has fled to Australia on 06/09/2012 for his own safety and security. In view of his plight I recommend that he may allowed to live in Australia until such time the full normalcy returns in Srilanka

17 A perhaps notable feature of this letter is that its author did not refer to the applicant as his grand-nephew but rather as a person who had been known to him for quite a long time. As will be seen, this was an aspect of the letter which attracted the delegate’s attention.

18 In his statement, the applicant said that the harassment by the TMVP took place at Batticaloa, but the applicant also says that even when he went back to his home village of Periyakallar and campaigned for the TNA that the harassment and threatening behaviour from the TMVP continued. Importantly, he says that on one occasion members of the TMVP had used a hot iron to brand the inside of his palm and that he still had the scar from this branding.

19 Whilst he was not campaigning, he also says that members of the TMVP came to his house in Periyakallar and took him away to the beach. At the beach they had forced him to mine sand the point of which was to raise funds for the TMVP.

20 It will be recalled from his entry interview that the applicant said that he had received a letter from the TMVP threatening his life if he did not stop helping the TNA. In his statement he now identified that letter as having been received on about 20 August 2012. A copy of that letter is in the appeal book at AB90 and appears to be written in Tamil. As will be seen, although the applicant was subsequently asked to provide a translation of the letter, he did not do so. In his statement the applicant does say, however, that the letter stated that his life could not be guaranteed if he did not withdraw from campaigning and this was his final warning.

21 In the version in his statement, the applicant does not recount having informed his great-uncle of earlier threats or the great-uncle’s advice to ignore those threats. There are two other significant differences between the version given at the entry interview and the version in the statement. The first of these, already noted above, is that the applicant made no reference to having had his hand branded at the entry interview. The second is that he made no reference to having been taken from his home in Periyakallar and forced to mine sand for the TMVP at the entry interview.

Third account: The interview with the delegate

22 The delegate who made the initial decision concerning the applicant’s visa invited him to an interview which took place on 20 April 2017. The applicant gave sworn evidence before the delegate with the assistance of a Tamil interpreter. A transcript of the interview was included in the appeal papers.

23 The delegate asked the applicant about his relationship with his great uncle (‘ h ow would you describe your relationship ’: Supplementary Appeal Book (‘SAB’) at SAB15 [209]) which elicited from the applicant a description of the work he had done for him. The delegate then asked him a somewhat more pointed question about the terms of the letter:

Case Officer:    And why does he simply state in the document that is with your application that you were quote “known to me for quite a period of long time.”

Interpreter:    Because – through my Grandmother I know very well.

24 In relation to the events of 2012, the applicant told the delegate that he had gone with his great uncle to propaganda meetings but that his main duty had been to put up posters, to canvas for votes house to house and to hand out leaflets and notices: SAB16 [223]-[225]. This accorded with his earlier accounts.

25 The delegate then asked him about the harassment he suffered during the 2012 elections. He told the delegate that the TMVP had asked him to work for them and that he had refused this offer. He was called into the TMVP office in Batticaloa where they had then threatened him and warned him that if they saw him again they would take some other kind of action against him: SAB18 [255]-[256]. The delegate summarised this in the question ‘ So they threatened you for not working for them ’ to which he responded ‘ Y es ’.

26 The evidence before the delegate is a little unclear at this point but the most likely reading of the transcript is that, at the time that this threat was made, there were a lot of people around and the applicant had told them that he was studying. For that reason, they had let him go. But he went on to explain that after he had finished his classes and returned (presumably home) they had taken him and his bicycle and detained him for a day although they released him by the evening. It was during this period of detention that they had branded his palm with a hot iron bar. After that experience he did not visit the TMVP offices again.

27 Because there is some debate about this it is worth nothing that the transcript is quite clear that the branding of the hand happened at the time he was detained and then let go in the evening (‘ Y eah that also I mentioned that they let me go in the evening so this happened during that time ’: SAB20 [291]).

28 The applicant also gave evidence of being forced to do labour by the TMVP. He said this occurred in around 2007 or 2008 when he returned to Periyakallar during school vacation. He had been playing cricket with his friends when he was forcibly taken by the TMVP and made to mine sand at the beach and do other works for them: SAB13 [157]-[158].

29 At the end of the interview, the applicant’s migration agent said that he would provide a translation of the letter from the TMVP but this did not occur.

The delegate’s reasoning

30 The delegate accepted that the applicant had provided low level support for the campaign of the member of Parliament in the 2012 provincial elections but he made no finding as to whether the member of Parliament was in fact the applicant’s great uncle. The delegate recorded the applicant’s evidence that the relationship had been close and noted that the letter said only that the applicant had been known to the member of Parliament for a long time.

31 The delegate found that the applicant had been detained at least twice by the TMVP and that during one of those detentions his hand had been burnt with a hot iron bar. As I have noted above, the applicant gave evidence of only one detention during the interview with the delegate. However, it will be recalled that he also gave evidence at the interview and in his statement of being taken by the TMVP in Periyakallar and made to mine sand at the beach. Whether the sand mining incident or another incident was the second instance of detention that the delegate had in mind is not an issue which calls for resolution.

32 The delegate next accepted that the applicant was subject to low-level harassment at his home in Periyakallar by reason of the letter he had been sent by the TMVP dated 20 August 2012. The delegate did this notwithstanding that the applicant had not provided a translation of the letter.

33 Despite finding that the applicant had been the subject of low-level harassment in 2012 by the TMVP and despite accepting that this harassment had included a letter containing a death threat as well as the branding of his hand with a hot iron bar, the delegate concluded that the protection visa should be refused.

34 This was because the delegate concluded that there was no real chance that the applicant would be pursued or seriously harmed by anyone in Sri Lanka because of his association with the TNA. There appear to have been three reasons for this:

(a) In the 2015 elections (noting that the delegate’s decision was made in 2017) there had been 148 major incidents of election related violence across Sri Lanka. These included five murders, 58 incidents of assault and two abductions. However, there was no indication that the TNA was particularly or disproportionately targeted in this violence.

(b) In the 2015 election, the TNA secured 16 seats and became the formal opposition in Parliament. The TNA was therefore a party with significant support. The delegate was also unable to identify any systematic targeting of TNA members, supporters or employees.

(c) The overall involvement by the applicant in the TNA was low.

35 Additionally, while the TMVP remained active as a political party, the delegate found that there was no information to indicate that the TMVP was active as a paramilitary group since the 2015 elections and country information indicated a significantly lower level of threat from this group. The delegate was not persuaded that the applicant would face a real chance of harm from the TMVP.

36 The effect of this reasoning was to outflank the applicant’s evidence about what had happened to him in 2012 by drawing on other material to say that the situation had changed by 2015.

The Immigration Assessment Authority

37 The matter was then automatically referred for a review on the papers. The Authority recorded the applicant’s claim in this regard as follows:

He was threatened by the TMPV when, for a few months before the September 2012 eastern provincial elections, he provided assistance for his great uncle’s campaign when he was already a Member of Parliament. During this period, members of the TMVP would harass and threaten him to stop him from campaigning for the TNA, because they wanted more support. On one occasion the TMVP used a hot iron to brand the inside of his palm. When he was not campaigning for the TNA, the TMVP would also force him into hard labour mining sand.

38 Whereas the delegate had made no finding that the member of Parliament was, or was not, the applicant’s great uncle, the Authority concluded that he was not: AB177 [10]. It reached this conclusion because the letter from the member of Parliament did not mention that the applicant was his grand-nephew but instead only that he had known him for a long time. Unlike the delegate, the Authority found the letter was not credible and did not accept that the applicant had been involved in the 2012 provincial elections.

39 Although the Authority did accept that the applicant’s hand had been branded by members of the TMVP, it thought that this was a result of the efforts on the part of the TMVP to recruit the applicant to work for them (rather than as a persecution for his membership of the TNA). Even though it accepted that the applicant’s hand had been branded by the TMVP the Authority expressed itself satisfied that his claims about the TMVP were ‘exaggerated’ and ‘inconsistent’. The inconsistency principally arose from the applicant’s failure to mention at the interview with the delegate that he had been forced to mine sand and possibly as to whether the sand mining incident had occurred in 2007/2008 or 2012. It is unclear to me how it may be said that the claims were exaggerated where the worst of the claims – hand branding – was accepted by the Authority.

40 Warming to its theme of general incredulity, the Authority then concluded that the death threat had not been sent because it was unlikely that the TMVP would make death threats in writing.

41 Proposed ground 2 is set out above and seeks to characterise as unreasonable the Authority’s finding that the applicant’s claims about the TMVP were exaggerated and its finding that he faced no real risk of harm in the future. The particulars provided with proposed ground 2 make clear that proposed ground 2 is concerned with the events which happened in 2012.

42 It is not necessary to reach a view about the soundness of this proposed ground of appeal. Even if it were upheld, it would be necessary to dismiss the application. This is because the Authority also found that the applicant had not participated in politics in Sri Lanka since he departed Sri Lanka in September 2012; that the TMVP had not been active as a paramilitary force since the 2015 elections; and, therefore, that there was no real chance of him being persecuted by the TMVP if he were returned to Sir Lanka.

43 Put another way, even if the Authority had found that the applicant had worked for his grand-uncle on the 2012 elections doing various chores etc; even if he had been threatened and harassed by the TMVP in 2012 both in Batticaloa and in his own village of Periyakallar (including the forced mining of sand), this would still make no difference. Once the Authority concluded that he faced no real chance of persecution from the TMVP because of his lack of interest in politics since 2012 and the reduction in the position of the TMVP from 2015 onwards, its earlier conclusions about the events of 2012 are cut off from having a material impact on its conclusion. In the absence of a challenge to that reasoning, proposed ground 2 could not lead to the Authority’s decision being set aside.

44 Leave should not be granted to pursue proposed ground 2.

Proposed ground 3

45 Proposed ground 3 is in these terms:

The Authority unreasonably failed to consider whether to invite comment under s‍ 473DC on an adverse implied credibility finding contrary to the delegate’s acceptance.

46 The point involved in this ground concerns the seeming oddness of the Authority’s extensive adverse credit findings about the applicant where the delegate, by contrast, found the applicant largely to be credible.

47 Prior to its repeal, s 473DC permitted the Authority to obtain new information. I am prepared to assume that the Authority unreasonably failed to seek new information from the applicant before departing from the delegate’s credit findings.

48 However, as with ground 2, this argument goes nowhere unless there is a parallel challenge to the Authority’s conclusion that due to the applicant’s lack of interest in Sri Lankan politics since 2012 and the declining position of the TMVP since 2015, the applicant faced no real risk of persecution by the TMVP.

49 Leave to pursue proposed ground 3 should not be granted.

Proposed ground 1

50 Proposed ground 1 is in these terms:

The Circuit Court erred in its acceptance at 62 that the Authority’s risk inference at [12]-[14] that a lack of further harm after branding meant no real risk was not affected by jurisdictional error, as the very short timeframe between branding and departure, in respect of which the Applicant accepted that nothing further happened after that, meant that this was not a rational basis to discount risk.

51 Mr Taylor accepted that if the applicant could not succeed on grounds 2 and 3, he could not succeed on ground 1. In that circumstance, leave should not be granted to pursue proposed ground 1.

Conclusion

52 The proposed appeal enjoys no reasonable prospects of success. The application for an extension of time will be dismissed with costs. I will also order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

| I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. |
Associate:

Dated: 14 April 2026

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