ALO18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1278

1. The Applicant is a citizen of Sri Lanka who sought protection primarily on the basis of claims to fear harm on return due by suspicion of association with a militant group, prior detention and involvement in a reporting regime and as an asylum seeker who fled Sri Lanka illegally.
2. The Applicant now seeks judicial review of a decision to affirm an administrative decision to refuse a protection visa.
3. For the reasons that follow, the application must be dismissed.

1. The Applicant is a citizen of Sri Lanka and of Tamil ethnicity.
2. On 8 November 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
3. On 9 March 2017, the Applicant applied to the First Respondent for a safe haven enterprise visa (subclass 790) (protection visa).
4. On 27 June 2017, a delegate of the First Respondent refused to grant the protection visa.
5. On 10 January 2018, the Immigration Assessment Authority (as it then was) (Authority) affirmed the delegate's decision on review (Authority's decision).

1. The Authority's decision commenced with a brief introduction to the Applicant's claims: at [1]. The Applicant's claims for protection are outlined in more detail at [9] of the Authority's reasons.
2. The Authority summarised the information that was before it which included the material provided to it by the Minister under s.473CB of the Migration Act 1958 (Cth) (Act) in addition to a submission by a representative provided to the Authority by the Applicant on 28 July 2017: at [2] - [3].
3. The Authority analysed the materials that were not before the delegate (provided on 28 July 2017). The decision maker decided to consider that part of the submissions which could be characterised as "argument" and concluded that the remainder could not be considered within the scope of the legislation: at [3] - [8]. Ultimately, in respect of the balance of the written submission, the Authority was not satisfied that the Applicant could not have provided the new information prior to the delegate's decision, that the new information was "credible" as to constitute "credible personal information" or that there were any "exceptional circumstances" as to justify its consideration: at [5] - [7].
4. The Authority conducted its refugee assessment at [10] - [42] where it made a number of factual findings and ultimately determined that the Applicant did not meet the definition of "refugee" at s.5H(1) of the Act and therefore did not meet s.36(2)(a) of the Act: at [42].
5. The Authority considered the complementary protection assessment at [43] to [48] where it determined that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant did not meet s.36(2)(aa) of the Act: at [48].

1. On 1 February 2018, the Applicant filed an originating application for judicial review of the Authority's decision and an affidavit affirmed 31 January 2018 which annexed the Authority's reasons. By the initiating application, the Applicant identified two points under the heading "grounds of application" in the following terms:
   1. The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority's reasoning departed from the Department's reasoning, resulting in in a practical injustice to the Applicant.
   2. The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.

1. On 20 March 2018, a response was filed on behalf of the First Respondent by which it was contended that the application for judicial review did not establish any jurisdictional error in the Authority's decision and the First Respondent would seek an order for their costs.
2. On 12 December 2024, the Court made orders which invited the Applicant to file any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which they sought to rely by 20 February 2025. The Applicant did not do so by that time or at all.
3. On 8 and 16 January 2025, the Applicant's former representative filed a notice of intention to withdraw as a lawyer and notice of withdrawal of lawyer. There was no alternate representative on record in the intervening period.
4. On 6 and 7 March 2025, the First Respondent filed an outline of written submissions and an affidavit evidencing service of the variously filed materials on the Applicant at his notified address for service.
5. The matter proceeded to final hearing before the Court as presently constituted on 13 March 2025. The Applicant appeared in person and the First Respondent was represented by a solicitor advocate. At the outset of the hearing, the process and role of the Court was explained to the Applicant, with the assistance of an interpreter. The Applicant was afforded an adjournment to have the First Respondent's submissions translated. When invited to make oral submissions, the Applicant told the Court of his fear of returning to his country which is the reason he left and left his family behind. The Applicant did not otherwise elaborate on or develop the grounds of review.

1. A "privative clause decision" as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
2. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), as cited in BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20] (Kelly J).
3. The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that "a" criteria for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

1. An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
2. Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a "fast track reviewable decision" which, relevantly, included a decision to refuse to grant a protection visa to a "fast track applicant".
3. Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
4. Division 1 of Part 7AA commenced with a self-described "simplified outline" at s.473BA including that Part 7AA provided a limited form of review in relation to decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was to be efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it may have considered new material and may have invited a referred applicant to provide, or comment on, "new information".
5. Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
6. Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so "without accepting or requesting new information" and "without interviewing the referred applicant".
7. Subdivision C of Part 7AA, most relevantly at ss.473DC - 473DD, concerned how the Authority may "get" and "consider" new information that was not before the Minister when the decision was made under s.65:

473DC Getting new information

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(b) the Authority considers may be relevant.

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both "the decision" on review and "the reasons for the decision".

1. The original application articulated two unparticularised grounds of judicial review respectively directed at the procedure adopted by the Authority. They are interrelated and overlapping in that both grounds attack the Authority's alleged failures to raise new issues with the Applicant and put him on notice of departure(s) from the delegate's reasoning.
2. Both grounds are to be understood in their proper statutory context (outlined above) which confined the Authority to conduct its review of the delegate's decision with specific fetters on ordinary concepts of procedural fairness.
3. In respect of the contention that the Authority failed to alert the Applicant to new issue(s) of which the Applicant was not aware, the Applicant did not point to any particular issue. Nor did the Applicant identify the alleged departure in reasoning from that of the delegate. The starting point is that there was no obligation on the Authority to draw the Applicant's attention to issues arising on the review even if those issues have not been raised in the delegate's decision: CID16 v Minister for Immigration and Border Protection [2017] FCCA 485 at [31] (Street J). In any event, in the circumstances and on review of the materials before the Court, the First Respondent's submission that there is no discernible new issue or departure from the delegate's reasoning is accepted.
4. In respect of the allegation that the Authority failed to review the delegate's decision and failed to conduct a review as required under s.473CC(1) of the Act by failing to inform the Applicant of new issue(s) arising before it and by failing to consider exercising its discretion to get new information from the Applicant, similarly the Applicant did not illuminate the nature of the issue(s). As the First Respondent submitted, it is not apparent that there was an issue dispositive of the review conducted by the Authority that the Applicant was not properly aware or on notice of.
5. For completeness, the Applicant did not identify the new information that could possibly have been provided that might have materially affected the outcome (were the substantive grounds made out), absent which the grounds could not succeed. Without more, I conclude that the Authority had regard to each of the Applicant's claims and made findings that were open to it on the evidence that was before it.

1. Being unable to identify an error of jurisdiction, the application must be dismissed. There will be an order that the Applicant pay the First Respondent's costs in the amount of $6,000 being less than the scale amount at Schedule 2 of the Migration Regulations 1994 (Cth) as sought.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.