ARK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1277

1. The Applicant is a citizen of Sri Lanka who sought protection primarily on the basis of claims to fear harm on return by suspicion of association and involvement with a militant group and as an asylum seeker who fled Sri Lanka illegally.
2. The Applicant now seeks judicial review of a tribunal decision to affirm the administrative decision to refuse him 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 14 October 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
3. On 18 January 2017, the Applicant applied for a safe haven enterprise (subclass 790) visa (the protection visa).
4. On 2 May 2017, the Applicant attended an interview before a delegate of the First Respondent to discuss his protection visa application and his claims contained therein (delegate's interview).
5. On 7 June 2017, a delegate of the First Respondent refused to grant the protection visa.
6. On 1 February 2018, the Immigration Assessment Authority (as it then was) (Authority) affirmed the delegate's decision on review (the Authority's decision).

1. The Authority's decision commences with a brief overview of the Applicant's claims and a brief history of the matter: at [1] - [2]. The Applicant's claims for protection are elaborated on at [14].
2. The Authority summarised the information that was before it which, relevantly, included the material provided to it by the Minister under s.473CB of the Migration Act 1958 (Cth) (Act) in addition to a submission and three sources of country information provided to the Authority by the Applicant on 27 June 2017: at [3] - [4].
3. The Authority analysed the materials that were not before the delegate (provided on 27 June 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 [4] - [13]. 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 personal information" or that there were "exceptional circumstances" as to justify its consideration: at [5] - [9]. The Authority came to the same conclusion with regard to the three sources of country information: [10] - [13].
4. Having identified the relevant information before it and summarising the Applicant's claims for protection, the Authority then made a number of factual findings including several adverse findings in respect of the Applicant's claims for protection: at [15] - [24].
5. The Authority conducted its refugee assessment at [25] - [35] where it 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): at [36].
6. The Authority considered the complementary protection assessment at [37] to [42] 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).

1. On 15 February 2018, the Applicant filed an originating application for judicial review of the Authority's decision and an affidavit sworn 15 February 2018 which annexed the Authority's decision. By the initiating application, the Applicant identified three points under the heading "grounds of application" in the following terms:
   1. The Second Respondent constructively failed to review the First Respondent's decision, denied the Applicant's procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
   2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
   3. I had sought legal assistance through Victorian Legal Aid and am waiting for a response from them to assist me at the federal circuit court. I will have a lawyer representing me at my court hearing.

1. On 28 February 2018, a response was filed on behalf of the First Respondent by which it was contended that the application failed to establish any jurisdictional error and the First Respondent would seek an order for their costs.
2. On 12 December 2012, the First Respondent filed a court book.
3. On 14 February 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 6 March 2025. The Applicant did not do so by that time or at all.
4. On 19 March 2025, the First Respondent filed an outline of submissions.
5. The matter proceeded to hearing before the Court as presently constituted on 27 March 2025. The Applicant appeared in person with the assistance of an interpreter 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 that he had no opportunity to give any additional information, is not familiar with the law and how to make any further defence but still has problems if he goes back to Sri Lanka. Beyond this, the Applicant did not 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. Of the three points therein, the original application articulated two unparticularised grounds of judicial review respectively directed at the procedure adopted by the Authority (where the third was in the nature of a submission and not a ground of judicial review).
2. Both grounds alleged a denial of procedural fairness.
3. 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. As the First Respondent submitted, a review conducted under Part 7AA is of a specific and limited kind: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Gageler, Keane, Nettle, Gordon and Edelman JJ), see also ALR17 v Minister for Home Affairs [2019] FCAFC 182 (Nicholas, Griffiths and Gleeson JJ).
4. To the extent that the Applicant contended the Authority had failed to sufficiently raise critical matters and, or perhaps in the alternative, had failed to extend an opportunity for him to reply to adverse information, this contention was not illuminated by reference to any particular notwithstanding the various opportunities afforded (whether in writing or orally). On the face of the Authority's decision and absent any identification of the matter(s) or information that the Authority ought to have raised with the Applicant, I accept the First Respondent's submission that there is no basis to find that the Authority acted unreasonably in the exercise of its powers as contended by the first ground.
5. In respect of the contention that the Authority's failure to invite the Applicant to an interview before it was a denial of procedural fairness, there was simply no obligation on the Authority to do so. Again, absent an articulation of a reason why the Authority ought to have considered exercising its discretion to invite the Applicant to an interview, there is no basis on what is before the Court to find that the Authority acted unreasonably. As the First Respondent pointed out, this was not a case where new issues arose, where the Authority considered new information or where the Authority departed from the delegate's findings as might warrant further interview in some circumstances: as in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (Robertson, Murphy and Kerr JJ).
6. Although not put by the Applicant in this way, at final hearing the Court sought to be addressed about whether the Authority's decision to refuse to accept certain new information was potentially affected by a denial of procedural fairness on account of the Applicant's language barrier. Specifically, the new information in the form of three country information articles or reports that respectively pre-dated the delegate's interview. At paragraph [11] of the Authority's reasons, the Applicant was recorded as having said that the reason why he could not provide this information sooner was because he did not have a representative and did not have English translations of two of three articles. There, in considering the criteria at s.473DD of the Act (as in force at the time) and determining it was not satisfied that the Applicant could not have provided this information earlier, the Authority had taken into account that the articles pre-dated the delegate's decision, the Applicant did not have the assistance of a representative at the delegate's interview and had not indicated to the delegate that he wished to provide information but needed an English translation. The Court was taken to the transcript of the delegate's interview which disclosed that the Applicant had the assistance of an interpreter at the delegate's interview and, following an adjournment of the interview after a series of direct questions, was afforded an opportunity to say anything at all in respect of his visa application at which time he responded that there was a lot of information about returnees to Sri Lanka and a lot of them having problems which was all in the news and he was fearful of experiencing problems if sent back. It being apparent that the Applicant had a fair opportunity to present the new information at interview before the delegate with the assistance of an interpreter, and did not do so, I discern no denial of procedural fairness in this respect. For completeness, the Authority considered each of the criteria at s.473DD and in the correct order as outlined in AUS17 v Minister for Immigration & Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) and provided logical and cogent reasons for its decision to refuse the new information.
7. Moreover, even if there were an error of the kind alleged, the Applicant has not identified how it was material to the outcome, absent which, these grounds cannot succeed.

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 $5,400 being less than the scale amount at Schedule 2 of the Migration Regulations 1994 (Cth) as sought.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.