AJN18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 398

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), dated 22 December 2017. The Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (SHEV) (Subclass 790) visa (visa).
2. Reference in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit "R1".
3. References to the Act are to the Migration Act 1958 (Cth).

1. The applicant is a citizen of Sri Lanka (CB 78). He is from Jaffna District, Northern Province (CB 87).
2. The applicant first arrived in Australia on 17 November 2012 as an unauthorised maritime arrival (CB 110). On 3 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview conducted by the Department of Immigration and Citizenship (CB 1-18). The applicant claimed he left his country of residence because he was physically harmed by members of the Criminal Investigation Department (CID) and the Eelam People's Democratic Party (EPDP) contending that if he had not fled Sri Lanka '[he] would be dead right now' (CB 12).
3. On 23 December 2015 and 16 February 2016, the applicant was invited to apply for the visa or a Temporary Protection (Subclass 785) visa under the Fast Track assessment process (CB 19-24, 28-32).
4. On 21 December 2016, the applicant applied for the visa (CB 33-72). Attached to the application were copies of the applicant's Sri Lankan Nation Identity Card, a copy of his birth certificate and a statutory declaration dated 12 December 2016 (Declaration) (CB 78-82). The applicant was assisted in the preparation of the Declaration by an interpreter fluent in the Tamil and English languages (CB 82).
5. In the Declaration, the applicant set out his, and his family's involvement, in the Liberation Tigers of Tamil Eelam (LTTE) during the civil war in Sri Lanka. This included a period of detention in an army-controlled camp from which the applicant claimed he escaped (CB 79). The applicant claimed that after his escape, the CID apprehended and beat him (CB 80). He later fled to a relative's home in Trincomalee and during that time his father was apprehended and beaten and tortured by police. The applicant claims he was detained for a period of 4/5 days, beaten and tortured (CB 80). He decided to leave Sri Lanka in August 2012. He feared that if he were to return, he could be harmed by authorities because he was a young Tamil male, from the Jaffna District, his father supported the LTTE as did other members of his family, and he has been targeted and beaten by authorities in the past (CB 81).
6. On 24 February 2017, the applicant was sent a request to attend an interview with an officer of the Department of Immigration and Border Protection (CB 105-6). The interview took place on 17 March 2017 (SHEV Interview).
7. On 18 April 2017, the applicant was notified that the delegate had refused to grant the applicant the visa (CB 107-130). A decision record was attached in the notification (CB 110-130).
8. On 27 April 2017, the delegate referred the decision to the Authority for review under Part 7AA of the Act (CB 131-2). The applicant retained a registered migration agent to act on his behalf.
9. On 20 May 2017, the applicant's agent provided supplementary information and a written submission to the Authority (CB 141-191). That information included a medical report dated 21 March 2017 that concluded that the applicant had scaring consistent with his claims of beatings and torture (CB 145-6). The information also included a letter from the applicant's father confirming parts of the applicant's claims for protection, a letter from a "Grama officer" stating that it was not safe for the applicant to return to Jaffna and a letter from a Parish Priest claiming that the applicant's life would be in danger if he were to return to Jaffna (CB 149-153).
10. On 22 December 2017, the applicant was notified that the Authority affirmed the decision of the delegate to refuse to grant the visa (CB 197). The authority gave detailed written reasons (Decision) (CB 198-218).

1. In the Decision, the Authority considered whether exceptional circumstances exist to allow the reception of further information not submitted to the delegate (s 473DD of the Act). The Authority was not satisfied that the new information sought to be relied upon could not have been provided to the Minister prior to the delegate's decision, nor was it credible personal information known, or provided, to the delegate. This new information included country information that the applicant's agent included in the submissions to the Authority (CB 200 [7]-[9]).
2. The Authority then considered the applicant's Declaration (CB 201 [10]). The claims made in the Declaration were summarised. The Authority then compared the Declaration to the evidence given in the SHEV interview (CB 201-2 [10]-[11]).
3. The Authority then assessed the applicant's claims against the refugee criteria in s 5H(1) of the Act and whether the applicant had a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found that the applicant's evidence in relation to events that led to his departure to be "unconvincing" and noted inconsistencies in the applicant's evidence in both the Declaration and SHEV interview (CB 203-6 [15], [16]-[25]). There were ten main inconsistencies, and other discrepancies noted.
4. The Authority then considered the medical report provided by the applicant after the SHEV interview (CB 207 [27]). The Authority was not satisfied that the applicant's injuries were sustained in the circumstances claimed by the applicant (CB 207 [30]). The Authority concluded that the applicant fabricated events including his adverse profile with Sri Lankan authorities to "enhance his claims for protection" (CB 208 [32]). The Authority was not satisfied that the applicant had an adverse profile with the LTTE, CID, the EPDP, the SLA or any other arm of the Sri Lankan government prior to leaving Sri Lanka in 2012, as claimed. The Authority was not satisfied that the applicant was at risk of harm in Sri Lanka on the basis of having relatives with prior LTTE involvement.
5. After considering country information (which was also considered by the delegate), the Authority was not satisfied that the applicant faced a real chance of harm due to his Tamil ethnicity, his former place of residence, his actual or imputed LTTE profile, his age, or for any other reason, upon his return to Sri Lanka, now or in the foreseeable future (CB 209-10 [37]-[39]).
6. The Authority then considered the consequences of harm that could be suffered by the applicant upon his return as a failed asylum seeker (CB 210-11 [40]-[43]). The Authority accepted that because the applicant left Sri Lanka without a passport, he may be found to have exited Sri Lanka illegally thus committed an offence, however found that fines rather than imprisonment is a likely outcome upon return. The Authority was not satisfied the applicant would face a real chance of serious harm should he return to Sri Lanka (CB 212 [47]-[48]). The applicant did not meet the requirements of the definition of a refugee on s 5H(1) of the Act because the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act.
7. Having found that the applicant did not satisfy s 32(2)(a) of the Act, the Authority then considered the complementary protection criterion in s 32(2)(aa) of the Act (CB 212-3 [51]-[57]). The Authority was not satisfied that the applicant faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia and return to Sri Lanka (CB 214 [59]). The Decision not to grant the visa was affirmed.
8. On 25 January 2018 the applicant applied to this Court for judicial review of the Decision (CB 219-224).

1. The application for judicial review was accompanied by an affidavit sworn by the applicant on 25 January 2018 (CB 225-8). The affidavit simply set out a brief history of the application for the visa, the delegates decision and the review by the Authority.
2. In the application for judicial review, the applicant identified six grounds as follows (verbatim):

1. The IAA applied the wrong legal test.

2. The IAA did not afford me procedural fairness.

3. The IAA erred in law by not correctly considering my claims for protection under s 5 J (1) of the Migration Act 1958 (Cth).

4. The IAA erred in law by not correctly considering claims under s36(2A) of the Migration Act 1958 (Cth).

5. The IAA erred in law by not correctly considering claims for complimentary protection under s36(2) (aa) of the Migration Act (Cth).

6. The IAA did not consider all of my claims, correctly and accurately. I will provide all the relevant details.

1. On 31 October 2018 and 11 September 2024, a Registrar of the Court ordered that the applicant file and serve any amended application for judicial review, affidavit evidence and an outline of written submissions before the hearing. The applicant did not do so.
2. The application for judicial review was listed for hearing via video link to be heard in Perth on 19 February 2025. Ms Moxey, solicitor, appeared for the Minister. The applicant was self-represented, assisted by an interpreter fluent in the English and Tamil languages.
3. The Court confirmed that the applicant had received a copy of the Court Book and the outline of written submissions prepared by the Minister and that the documents had them translated to him. The applicant did not seek to tender any further evidence or rely on any further documents.

1. The Court referred to the application for judicial review and asked the applicant to elaborate on the six grounds of review cited. In particular, the Court ask the applicant to identify why the Authority had made a significant mistake which was a material jurisdictional error requiring the Authority or Minister to reconsider the decision of the delegate.
2. The applicant informed the Court that he could not remember the grounds of review or why the Decision was wrong. He asserted that he had been told that the Decision was not true and was incorrect. The applicant said that he had given the Authority "all the papers" and he did not know what more was required. He asked, "what further documents do I need" and submitted that his case was true and correct and there was nothing else he could say or provide.
3. The applicant could not elaborate on the grounds of review in the application for judicial review or provide any insight on how the Authority had erred in the Decision.
4. The applicant reiterated that he has provided the Authority with all the materials and has already explained what has happened to him in his initial case. The Court explained that it was those materials that did not satisfy the Authority that the applicant required protection and therefore he could not be granted a SHEV visa. The applicant said that he did not have any further material to provide to the Court and that was "...all I can say at this point".

1. The Minister sought to rely upon the Court Book and read the affidavit of Tess Price affirmed on 4 December 2024 and the annexures thereto. The Court Book was marked exhibit "R1" and the affidavit of Ms Price and annexures were marked exhibit "R2". The affidavit deposed to the inadvertent exclusion of an email from the applicant's agent dated 28 March 2017 from the Court Book. That email was to the delegate after the SHEV interview and enclosed the medical report which was considered by the delegate and the Authority.
2. The primary submission on behalf of the Minister was that the grounds of review did not provide proper particulars of any jurisdictional error and were meaningless. For that reason alone, the application for judicial review must fail (see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and WZATH v Minister for Immigration and Border Protection [2014] FCA 969).
3. Ms Moxey also submitted that the Authority correctly identified the issues to be determined on the review and the relevant criteria to be satisfied under ss 36(2)(a) and 36(2)(aa) of the Act.
4. The Authority found that there were significant inconsistencies in the applicant's evidence. In particular, in relation to his involvement and his family involvement in the LTTE (CB 203-6 [16]-[25]). These findings were significant in reaching the conclusion that the applicant was not a refugee and was not entitled to complimentary protection. The findings of the Authority in the Decision were logical and rational and based on a thorough consideration of the evidence.
5. The Authority's reasons and findings were open on the evidence, including the inconsistencies in the applicant's evidence and the Authority was correct to conclude that the claims were not credible. Further, contrary to the applicant's first ground of review, the Authority applied the correct test. There was no error identified in that ground and the Authority correctly identified the statutory tests and applied those tests to the applicant's evidence.
6. Ms Moxey then addressed each of the other five grounds of review in the application for judicial review. It was submitted that there was no denial of procedural fairness as alleged in Ground two. The common law rules in relation to procedural fairness do not apply due to the operation of Div 3 of Part 7AA of the Act. The Authority also complied with s 473DD of the Act in respect of the consideration of new information, including the consideration of both ss 473DD(b)(i) and (ii) of the Act in accordance with the decision of the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11] (AUS17).
7. Grounds three, four, five and six did not provide particulars of any error and were simply expressing disagreement with the Decision on the merits and not grounds of review for jurisdictional error. Ground six also contained an assertion that "relevant detail" would be provided but was not. No amended application was filed or any evidence disclosing a failure by the Authority to properly consider a material fact or apply a relevant statutory test.
8. The Minister submitted that the application for judicial review should be dismissed with costs.

1. In reply, the applicant claimed that he had been captured, detained and beaten in 2009 by Sri Lankan authorities and so too his father. The applicant disagreed with the Minister's submission that he would not suffer significant harm if he were to return to Sri Lanka. He asked once more what further documentation he needs to provide. The applicant repeated that he cannot return to Sri Lanka due to concerns for his security. The applicant asked the Court to review his case again.

1. The function of this Court is to review the Decision and determine if the Authority has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.
2. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the High Court said:

In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Authority to the evidence produced before it at the hearing. The weight to be given to the evidence was in the domain of the Authority and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Nicholson J).
2. In this case, the task of the Authority was to assess whether the applicant was entitled to protection under s 36 of the Act. The criteria to be applied by the Authority as decision-maker are identified in the Act. Not every claim for protection will satisfy those criteria. The Authority considered all of the applicant's claims and did so after considering the applicant's evidence of his fear of persecution or harm should he return to his home country. The Authority was not satisfied that the applicant's claims were credible and therefore he did not satisfy the necessary statutory criteria. The decision to refuse the visa was affirmed.
3. The grounds of review in the application for judicial review are broad and vague. Ground one asserts that the Authority applied the wrong legal test. The applicant could not articulate why this ground was raised or the legal test that the Authority failed to apply. The Decision reflects that the Authority correctly identified the issues to be determined, namely whether the applicant was a refugee within the meaning of s 5H of the Act and was entitled to protection under either s 36(2)(a) or 36(2)(aa) of the Act. The Authority correctly confined the inquiry or review to the criteria in the Act and was not satisfied on the evidence that the applicant was entitled to protection or complimentary protection. There was no other "legal test" applied by the Authority to the primary issues to be determined and no error of law disclosed in the Decision that requires that the Decision be reconsidered by the Minister.
4. The Authority also afforded the applicant procedural fairness as it was required to do under the Act. The common law rules of procedural fairness do not apply (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [30] and [33]). Section 473DA and Div 3 of Part 7AA of the Act (before it was recently repealed) provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In Ground two of the application for judicial review the applicant does not identify how the Authority did not afford procedural fairness in the conduct of the review. The Decision reflects a careful analysis of all the evidence and the country information available to the delegate and the Authority.
5. The Authority was not prepared to accept new information submitted by the applicant's agent because it was not satisfied that "exceptional circumstances" existed to allow reception of that new information. Section 473DD prohibited the reception of new information on a review unless the applicant satisfies the requirements of ss 473DD (a) and (b). The Authority concluded that exceptional circumstances did not exist after considering the new information against the criteria in both ss 473DD (b)(i) and (ii) of the Act as it was required to do (see AUS17 at [11] and [18]). There was no denial of procedural fairness by the Authority as required by the Act.
6. Grounds three, four, five and six do not give any insight into why the Authority fell into jurisdictional error. Each ground simply asserts error but does not identify or particularise how the Authority failed to correctly consider the claims for protection made by the applicant. To the contrary the Decision reflects a detailed consideration of each claim and the evidence given by the applicant. The Authority was not satisfied that the claims were credible, and the statutory requirements were not met. It is not for this Court to review the merits of that reasoning or to reconsider the weight given to the evidence by the Authority. Each of these grounds does not disclose a material jurisdictional error.
7. The Court has also scrutinised the Decision for jurisdictional error. The Court has considered the materials before the Authority that have been included in the Court Book and the affidavit of Ms Price to identify any jurisdictional error, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114] per Mortimer J. No error is apparent. The application for judicial review must be dismissed.

1. At the conclusion of the Minister's submission, the solicitor for the Minister informed the Court that if the application for judicial review was dismissed, the Minister sought costs fixed in the amount of $8,371.30. That is the scale amount for costs and disbursements for a proceeding concluded at a final hearing of a migration proceeding as set out in Division 1, Part 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and is fair and reasonable in this case.

1. The application for judicial review filed on 25 January 2018 be dismissed.
2. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the amount of $8,371.30.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.