DDQ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 905

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.

1. On 5 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival (Court Book (CB) 78). He is a Sri Lankan Tamil (CB 12).
2. On 16 July 2013 and 2 June 2014, the applicant participated in an Irregular Maritime Arrival & Induction Interview which took place in two parts (CB 10-29). In those interviews, he said he left Sri Lanka when he was 12 because of the war. His father took him to India where he resided in a refugee camp for 23 years. He said that he left India because he was harassed by the Q Branch due to his refugee status (CB 20).
3. On 11 January 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a SHEV (CB 30-34). On 21 April 2017, the applicant lodged a SHEV application with the assistance of a migration agent (CB 55-94). The application annexed identity documents, a statement of claims, and country information (CB 95-135).
4. On 29 November 2018, the applicant was invited to attend an interview scheduled for 13 December 2018 (CB 142-143). The applicant was accompanied at that interview by his migration agent (CB 162). Following that interview, on 14 December 2018, the applicant and his representative were invited to provide further submissions within 14 days (CB 176-182).
5. On 8 July 2019, a delegate of the Minister refused to grant the applicant the visa (CB 184-206).
6. On 11 July 2019, the delegate's decision was referred to the second respondent, the IAA, for review (CB 207-208). The applicant did not seek to provide any new information with respect to the IAA review (CB 226).
7. On 7 August 2019, the IAA affirmed the delegate's decision not to grant the applicant the visa (CB 225-245).

1. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA's decision in some detail.
2. The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (the Act) (at [2]). The IAA did not obtain or receive any further information (at [3]).
3. The IAA then set out the applicant's claims to fear harm in Sri Lanka on the basis of his ethnicity and imputed political opinion, as summarised from his SHEV application and accompanying statement of claims as follows. The applicant said he remembered witnessing shootings in the civil war as a child. His father was a member of the Liberation Tigers of Tamil Eelam (LTTE) but was captured and imprisoned in 1988 before later escaping. His family home was burned down by the Sri Lanka Army in 1989, where his family subsequently feared for their lives and travelled to India by boat in 1990 where they lived in a refugee camp until 2013. In 2013, the applicant travelled to Australia with his wife and children but is now separated from them (at [4]). They are not parties to these proceedings.
4. The applicant claimed that his older brother went back to Sri Lanka in 2006 but was never heard from again. He claimed his brother was an active member of the LTTE and is presumed to have been killed. If returned to Sri Lanka, the applicant claimed he will be imprisoned, tortured or killed like other members of his family, on the basis of his Tamil ethnicity and the LTTE profile of his family members. He said he could not stay in India because India does not allow permanent residency and the living conditions in the refugee camp were very poor (at [4]).
5. The IAA accepted the applicant's claims as to his identity and found that his receiving country would be Sri Lanka (at [5]-[7]). Although the applicant had no identity documents from Sri Lanka, the IAA accepted the applicant's identity as shown on his Tamil Nadu Identity Card for Refugees from Sri Lanka (at [5]). The IAA, however, did not give any probative value to the identity card because it did not otherwise refer to any claims or the basis upon which the applicant was a refugee (at [8]). Nevertheless, the IAA accepted that the applicant grew up amidst civil war in Sri Lanka and that he fled with his family to India in 1990, where he resided in a refugee camp until 2013 (at [7]).
6. The IAA noted that the applicant confirmed he separated from his wife and children in 2015 (at [9]-[10]). They did not form part of his visa application and he did not seek to rely upon membership of the family unit. The IAA noted that the delegate's decision referred to a protection order but that this document was not before the IAA. The IAA did not seek to acquire that document as the IAA accepted the applicant's own evidence that he was subject to that order to be separated from his wife and children and that it was an offence to see them before the expiration of that order (at [10] in footnote 2).
7. The IAA was therefore not satisfied that the applicant was a member of the same family unit as a non-citizen refugee (at [11]).

1. The IAA set out the refugee assessment criteria in respect of whether the applicant has a well-founded fear of persecution under s 5J of the Act (at [12]-[13]). In assessing the applicant's evidence, the IAA considered country information with respect to the prevalence of arbitrary and lengthy detention and physical mistreatment of Tamils during the civil war, particularly noting that LTTE supporters were often Tamil and that LTTE support was sometimes imputed because of Tamil ethnicity (at [15]).
2. Despite finding the applicant's evidence vague and unpersuasive, the IAA was prepared to accept that the applicant's father was detained for questioning on LTTE suspicions in 1988 and was physically mistreated at that time (at [15]). However, the IAA did not accept that he had been detained for longer than a few weeks, and found that he had been released by the authorities after their enquiries were satisfied (at [17]). The IAA did not accept that the applicant's father was an LTTE member or supporter, or had been detained on that basis, or that he escaped from prison (at [16]).
3. The IAA was prepared to accept that the applicant's home may have been destroyed in the conflict, but did not accept that it was burned down by the Sri Lankan Army because of his father's purported escape from prison (at [17]). The IAA accepted that many Tamil men had been detained for questioning on LTTE suspicions, including the applicant's uncles, but did not accept that his uncles or other family members were LTTE members or were personally targeted and killed by the authorities for that reason (at [17]-[18]). The IAA accepted that the applicant had lost contact with his two older siblings after they returned to Sri Lanka in 2006, but did not accept that they "disappeared" because of any real or imputed LTTE association (at [18]).
4. The IAA had regard to oral submissions on behalf of the applicant regarding his fears about returning to Sri Lanka. The IAA accepted that the applicant had a subjective fear of harm as a Tamil in Sri Lanka, but found that it was not an objectively well-founded fear of harm (at [20]). The IAA referred to country information which indicated that the LTTE no longer exists and many years have passed since the end of the civil conflict and found that neither Tamil ethnicity nor past LTTE connections would warrant refugee status without the applicant otherwise having been significantly involved in the LTTE or post-conflict Tamil separatism (at [21]-[22]).
5. The IAA found that the applicant, who was 12 years old when he left Sri Lanka, would not be imputed with any LTTE or post-conflict Tamil separatism involvement, nor would he be targeted because of association with any such pro-LTTE or Tamil separatist groups, or be of any adverse profile to the authorities (at [23]-[25]).
6. The IAA referred to country information which indicated that arbitrary detention and abuse of Tamils in Sri Lanka had significantly reduced in recent years (at [26]. The IAA was not satisfied the applicant would face a real chance of harm upon return to Sri Lanka or in the reasonably foreseeable future on the basis of his ethnicity or origins or because of his relationship with his father (at [26]-[28]).
7. The IAA accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker, however it was not satisfied there was a real chance he would face harm on that basis (at [29]-[30]).
8. The IAA accepted that the applicant may face some challenges as a returnee from Tamil Nadu, and that he would have no immediate family in Sri Lanka, however the IAA found that this would not threaten his capacity to subsist and any social stigma would be at a low level and for a limited period, such that he would not face a real chance of serious harm on this basis (at [31]-[34]).
9. The IAA accepted that the applicant may be identified by Sri Lankan authorities as having departed illegally, and that he may be detained and questioned upon his return, but found that such treatment would be the result of laws of general application and would not amount to persecution or serious harm under the Act (at [35]-[40]).
10. The IAA found that the applicant would not face a real chance of persecution for any reason if he were to return to Sri Lanka now or in the reasonably foreseeable future (at [44]). The applicant therefore did not meet the refugee criterion in s 36(2)(a) (at [46]).

1. The IAA then considered the applicant against the complementary protection criterion (at [47]-[53]). For similar reasons above, the IAA was not satisfied that there was a real risk the applicant would suffer significant harm upon return to Sri Lanka or in the reasonably foreseeable future (at [49]-[53]). The IAA therefore found the applicant did not meet the complementary protection criterion in s 36(2)(aa) (at [53]).
2. Having regard to the above, the IAA affirmed the delegate's decision not to grant the applicant a protection visa.

1. On 19 August 2019, the applicant filed an application in this Court seeking review of the IAA's decision. The applicant filed an affidavit with that judicial review application which annexed a copy of the IAA decision.
2. The applicant appeared before the Court on 9 October 2024 without legal representation but with the assistance of Ms Russell, who advised she wished to appear for the applicant in the capacity of a McKenzie friend. The Minister did not oppose Ms Russell acting as a McKenzie friend. The Court is always grateful to those members of the community willing to provide assistance to otherwise self-represented applicants who appear before the Court. Nevertheless, the Court is acutely aware that "great care must still be taken before allowing a non-lawyer to speak for the party" (see Nepal v Minister for Immigration and Border Protection [2015] FCA 366; (2015) 327 ALR 89 at [15] per Edelman J (Nepal)).
3. In Nepal, Edelman J cautioned care must be taken as "[t]he non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm than good" (at [15]). The Court would add to this that an applicant may lose their opportunity to tell the Court something that only the applicant is aware of. No matter how well-intentioned a person who wishes to assist an applicant in the capacity of a McKenzie friend may be, there is always risk that an applicant may be disadvantaged. That is particularly the case where the Court is concerned with the narrow inquiry of whether a decision demonstrates jurisdictional error. A person without legal training may well think they are assisting an applicant by making an eloquent and articulate statement as to why the applicant should be granted a visa or why the Court should accept the veracity of an applicant's protection claims, unaware that those submissions could not have any bearing on the Court's task of gleaning jurisdictional error.
4. Having regard to all of the above, the Court took the view that the fairest approach was to first explain the nature of jurisdictional error to the applicant and Ms Russell. The Court then invited the applicant to make any submission he wished to make before inviting Ms Russell to address the Court. Ms Russell's submissions to the Court were interpreted for the applicant and at the conclusion of her submissions the applicant was asked if there was anything he wished to add or correct. The applicant confirmed there was nothing he wished to say.
5. As it transpired, Ms Russell clearly understood the nature of jurisdictional error and her submissions to the Court raised a number of complaints that were recognisable as potential jurisdictional errors. The Court records its appreciation and thanks Ms Russell for her willingness to assist the applicant and for the quality of that assistance.
6. The Court addressed with the applicant that his written submissions filed on 13 November 2024 appeared to raise an issue with the conduct of his migration agent. In these circumstances, the Court was guided by the observations in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 and explained to the applicant that if he wished to rely upon his assertions in respect of his agent's conduct, he would need to provide evidence in support of those assertions. He was advised that this should be by way of affidavit, but if he wished, he would be given the opportunity to give evidence from the witness box. If elected to do so, he may be subject to cross-examination from counsel for the Minister in the witness box. The hearing was adjourned to allow him time to file any further material he wished to rely upon and to attempt to secure legal representation. In this respect, the Court issued a pro bono referral certificate on behalf of the applicant.
7. On 9 December 2024, the applicant was successful in obtaining legal representation and the matter proceeded towards a hearing scheduled for 29 January 2025. At that hearing, the Court granted leave for the applicant to raise a new ground, and the hearing was adjourned until 20 March 2025 to allow the applicant to file a further amended application and for the parties to file further written submissions.
8. On 12 February 2025, the applicant filed a further amended application for judicial review. That further amended application did not press the argument with respect to the migration agent argument and instead advanced the following two particularised grounds (reproduced without alteration):
   1. The Immigration Assessment Authority's (IAA) decision was affected by error because of a failure by the Secretary to comply with section 473CB of the Migration Act 1958 (Cth) (the Act) in that it had failed to provide the IAA with all the material that was relevant to the review (Missing Document). This error was a jurisdictional error as:
      1. Compliance with section 473CB of the Act was a pre-condition of IAA's jurisdiction and as such it did not have the jurisdiction to determine the application; and/or
      2. the IAA ought to have exercised its power to request a copy of the Missing Document for the purposes of considering information relevant to whether the Applicant and his wife were living separately and apart on a permanent basis and therefore in a spousal relationship for the purposes of section 5F of the Act. The Missing Document could have changed the IAA's decision as had it been reviewed, the IAA would have been aware that its understanding of the information contained in the Missing Document was incomplete and inaccurate.

Particulars

(a) At [10] in footnote 2 of the decision, the IAA confirmed that it had not been provided with the Missing Document but that it had not sought a copy because it was satisfied of its nature based on the Applicant's own evidence.

(b) The Applicant's own evidence in his interview before a delegate of the Minister was to the effect that:

(i) it was an offence for the Applicant to be with his family before the date mentioned in the Court order;

(ii) the Court extended the protection order by a year;

(iii) the order was over; and

(iv) the Applicant intended to reunite with his wife and children.

(c) Notwithstanding the above, the IAA did not seek a copy of the Missing Document to assess the exact nature of the protection order for the purposes of an assessment under section 5F of the Act.

1. In proceeding to determine the application, while having actual knowledge of the Secretary's failure to comply with s 473CB of the Act, and without having made any attempt to rectify the Secretary's failure, the IAA exercised its jurisdiction in a manner that was legally unreasonable and devoid of plausible justification.

Particulars

(a) The Applicant refers to and repeats the Particulars to ground 1.

(b) The IAA had actual knowledge that the Secretary did not provide it with Missing Document.

(c) The IAA was aware, or ought to have been aware, that the Secretary was required to provide it with the Missing Document.

(d) The IAA made no efforts to obtain the Missing Document.

(e) The IAA proceeded to make a decision without the Missing Document.

(f) By making a decision on an incomplete evidentiary file, the IAA acted unreasonably.

(g) The IAA's error was jurisdictional.

1. The materials before the Court at the hearing on 20 March 2025 include:
   • the further amended application for judicial review filed on 12 February 2025;
   • the affidavit of the applicant sworn on 14 August 2019 and filed on 19 August 2019, annexing the IAA decision (taken as read and in evidence on 9 October 2024);
   • the Court Book numbering 245 pages (marked as Exhibit 1);
   • the affidavit of Claudia Calabrese affirmed and filed on 18 December 2024 (the Calabrese affidavit), annexing the Temporary Protection Order (the protection order) (marked as Exhibit 2);
   • the affidavit of Debrah Maria Mercurio sworn and filed on 19 December 2024 (the Mercurio affidavit), annexing an extract of the departmental interview (marked as Exhibit 3);
   • written submissions filed on behalf of the applicant on 12 February 2025 (to be read without reference to earlier filed submissions); and
   • written submissions filed on behalf of the Minister on 3 July 2024, 4 December 2024 and 26 February 2025.

1. Both of the grounds in this application take issue with a failure by the Secretary to comply with their obligation under s 473CB of the Act. The first ground asserts that the Secretary's breach resulted in the IAA's failure to accurately understand the contents and import of a document the Secretary had failed to provide, and further, that this had a material effect on the IAA's decision. The second ground alleges unreasonableness on the part of the IAA in determining the application without taking any steps to rectify the Secretary's breach.
2. Section 473CB(1)(c) relevantly provides:

(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473 CA:

...

(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

1. The Secretary must give the review material to the IAA. This language is mandatory and requires the Secretary to give the IAA the material set out therein, including the material provided by the applicant to the delegate before the delegate's decision was made (EVS17 v Minister for Immigration and Border Protection (2019) 268 CLR 299 at [32] (EVS17)).
2. Failure by the Secretary to comply with the duty imposed by s 473CB(1) will not inevitably lead to the IAA's decision being affected by jurisdictional error, as explained by Allsop CJ, Kerr and Mortimer JJ in BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 (at [62]) (BRH18):

...In the absence of some kind of allegation of a conscious attempt to mislead the Authority or to withhold information from it, the legal consequence on judicial review (if any) of the Secretary's non-compliance with the s 473CB(1) duty will rest upon the effect of the absence of the material concerned on the Authority's conduct of the review... Not every instance of non-compliance will have an effect, or a possible effect, on the Authority's performance of its statutory task.

1. In EVS17, it was accepted (at [35] of its reasons) that not every breach of s 473CB(1) will amount to a jurisdictional error and, in circumstances where it does, it will result in the IAA failing to conduct its review. Whether or not a breach is jurisdictional will depend on materiality (DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148; (2022) 294 FCR 1 at [43] (DNU20); EVS17 at [41]-[42]; BRH18 at [62]). Contrary to this, the applicant's primary position is that the error is so fundamental to the nature of the IAA's task that it is unnecessary to establish materiality for the error to be jurisdictional. Nevertheless, the applicant accepts that this is inconsistent with authorities such as EVS17, BRH18 and DNU20, which are binding on this Court, and did not further advance this submission save to say those authorities were materially inconsistent with the reasoning in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; (2023) 297 FCR 1 (LPDT). Given the applicant's concession in this respect, it is unnecessary for the Court to consider the matter further, save to say that the Court is not persuaded that the Full Court authorities are inconsistent with LPDT.
2. In this matter, the Minister accepts that there was one document which was properly before the delegate that was not properly put before the IAA, and accordingly, that s 473CB was breached by the Secretary. That document was a protection order which was referred to in a footnote in the IAA decision.
3. In considering whether the failure to provide the protection order to the IAA was material it is necessary to consider the nature of the document and where it was situated in the context of the overall evidence and claims which were before the IAA.
4. The protection order had been provided by the applicant in support of his claim that he was separated from his wife but had an intention to reconcile. The IAA's treatment of that claim is set out below (without alteration):

Wife and Children - Visa

[9] The applicant confirmed at the SHEV interview that he has been separated from his wife and daughters (whom I note are now aged 18, 16 and 12) since 2015, that they had their own separate application, and that his SHEV application was for him alone. His migration agent asserted in the interview that the applicant's wife and children had been granted their "five-year visas", and submitted to the delegate that this was significant for the applicant's future; and, if sent back, he could no longer visit his family.

[10] On the applicant's evidence, he and his wife separated in Queensland in 2015 and around the time she obtained a court-ordered temporary protection order against him, which he stated was later extended by a year. They remained separated at the time of the SHEV interview in December 2018, although he stated that the protection order had by then expired, however, he stated that they were planning on reuniting. The applicant demonstrated no concrete plans in support of his claimed intention to get back together with his wife and daughters, and the timeframe varied between sometime in the New Year to when his "case matters" were finished. There is no submission or evidence before me that he has subsequently reunited with his wife and children. On his evidence they live in Queensland, far away from his home in South Australia, and maintain separate finances and he does not provide them with any financial support. Although he stated they speak regularly on the phone, he only saw them for several days' visit in June 2016 and then Christmas 2017.

[11] The applicant has not claimed protection on the basis of being a member of the same family unit as his wife and/or children, and because they were not included as applicants in his application there is nothing on the face of his application to suggest he was seeking to rely on family membership. Nor has he claimed that he is dependent upon any of them, or they on him. There is no evidence before me as to the basis or bases on which his wife and daughters were granted their visas, or that their visas are of the same class as that sought by the applicant. Although I accept that he and his wife were married in India, on the evidence before me I am not satisfied that the definition of 'spouse' in s 5F of the Act is met, as I am not satisfied that they are living together or not living separately and apart on a permanent basis, or that they both have a mutual commitment to a shared life as a married couple to the exclusion of all others, or that the relationship between them is genuine and continuing. There is no evidence before me that his oldest daughter is a dependent child of the applicant, as defined in the Migration Regulations 1994. The delegate's decision was made almost seven months after the SHEV interview. On the review material before me, no further information was provided by the applicant or on his behalf to the delegate before her decision. Nor has any further information or submission been provided to the IAA. I am not satisfied that the applicant satisfied s.36(2)(a) or (aa) of the Act as I am not satisfied that he is a member of the same family unit as a non-citizen whom the Minister is satisfied is a refugee or is at real risk of significant harm, and who holds a SHEV.

1. In a footnote to [10] of the IAA's reasons, the IAA expressly acknowledges that the protection order was not before it and sets out its reasons for not requesting a copy of that material:

The delegate's decision referred to "ADD2014/475986: (name and date of birth) CentreID:PNC075 - applicant subject to a domestic violence application". This information is not in the review material before me. However, as the applicant's own evidence which I have accepted, was that he was subject to a court order to be separated from his wife and children, and that it was an offence to see them before expiration of the order, and he did not refute the delegate's reference during the interview to Queensland police having got a temporary protection order to protect his wife and child, I have not sought this material.

1. The delegate's decision addresses this issue as follows (CB 189-190):

...

The applicant and [name of the applicant's wife] are married but are separated and living separately following alleged domestic violence in March 2014. I note that the applicant was subject to a domestic violence application to have him excluded from the family home by way of a Protection Order made valid until 12 May 2017. The applicant stated at interview that this order was extended by 12 months, which would have taken it to 12 May 2018, and is now expired.

The children reside with their mother in Queensland while the applicant resides separately in South Australia. At interview, the applicant stated that he hoped to reconcile with [name of the applicant's wife] and that he was in regular contact with her and the children. He stated at interview that they are not living together as it would have been an "offence for them to have seen him before the date mentioned in the order" but also stated that he had seen [name of the applicant's wife] and the children when they visited Adelaide (once in 2016 and once in 2017). He was unable to explain what steps, if any, had occurred to be reunified with his family since the expiry of the Protection Order and then stated that he plans on reconciling once he obtains a visa. At interview, the applicant described living in a share house in Adelaide with others, having separate finances from [name of the applicant's wife], and was unable to articulate any specific plans for reunification to occur. At interview, the applicant acknowledged that while he was hoping to reconcile with his former wife, there was no specific plans for that to actually occur. I also note that no information in the form of a post interview submission or notification of change of circumstances has been provided to inform the Department of any changes since the interview.

Given that the applicant and [name of the applicant's wife] have been living apart for five years with no indications of reunification, I have found that the applicant and [name of the applicant's wife] are living separately and apart on a permanent basis. I consider them to be separated on a permanent basis...

1. The first of these paragraphs was augmented with two footnotes referencing a Technology Records Information Management file reference to a document on file, 'ADD2014/475986'. The Minister filed the Calabrese affidavit attesting that she had been informed by an officer of the Department that this document was not given to the IAA by the Secretary pursuant to s 473CB(1). Annexed to the affidavit was a Notice of Adjournment dated 15 April 2014 of the application for a Domestic Violence Protection Order. Also annexed was a Temporary Protection Order dated 15 April 2014 issued against the applicant in respect of his wife who was named as the aggrieved party but also naming the children as named persons protected by the order. The protection order stated:

(2) Respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives, works or frequents.

except (for the purpose of having contact with the children but only then as set out in writing between the parties or in compliance with an order of a court.

...

THIS ORDER SHALL REMAIN IN FORCE UNTIL A FURTHER ORDER IS MADE IN THE PRESENCE OF THE RESPONDENT OR IS SERVED UPON THE RESPONDENT OR THE RESPONDENT IS TOLD BY A POLICE OFFICER ABOUT THE EXISTENCE OF SUCH FURTHER ORDER OR UPON THE WITHDRAWL OR DISMISSAL OF THE APPLICATION FOR A PROTECTION ORDER BY THE COURT.

1. At this point, it is helpful to set out the timeline which becomes apparent in respect of the issuing of the protection order:
   • On 15 April 2014, the protection order is issued by the Beenleigh Magistrates Court and adjourns the matter for mention the following month on 6 May 2014; and
   • On that same day, an Undertaking as to Bail is issued, requiring the applicant to surrender to the Beenleigh Magistrates Court on 3 June 2014.
2. The Court observes that there is no information before it as to what may have occurred at either the mention on 6 May 2014, the applicant's surrender on 3 June 2014, or any subsequent proceedings. What is before the Court is the applicant's evidence before the delegate some four years later, on 13 December 2018, in which he makes the following statements (Exhibit DMM-1 of the Mercurio affidavit):
   • "[T]hat court order which was preventing me from getting back together with my wife, you know, that's over".
   • "So the court had given me a date until which I had to be separate from the wife".
   • When asked if it was a temporary protection order, the applicant replied "Yes, order".
   • "So it was offence for them to have seen me before the date mentioned in the court order".
   • "So the police had informed the court and I had to go back to Queensland and they had extended that order by a year".
   • When asked if it became a permanent or a longer term protection order he replied: "They extended it. It's over. So that was an offence to have met".
3. The applicant was very clear in his interview that there was an end date to the protection order. He expressly stated this on a number of occasions. He was also very clear that the date was extended for a further year. He says that on two occasions. The only apparent confusion is when the applicant is asked whether it was a temporary or permanent order, where he just confirmed that it was an order.
4. In the Court's view, having regard to the above, it seems logical that the applicant returned to Beenleigh Magistrates Court on at least the date he was required to, and a further order was made which had an end date that was subsequently extended by a year. That is the only sensible way of reconciling the terms of the Temporary Order, the Notice of Adjournment and the applicant's evidence before the delegate.
5. What this means is that the s 473CB breach relates to a document which itself had almost certainly been superseded by other documents, none of which appears to have been in the possession of the Secretary. It follows, that even if that document was before the IAA, it would have only been capable of providing clearly outdated information. The most current evidence in respect of the timing of the order was that provided by the applicant at the interview. That was evidence which was accepted by the IAA. Furthermore, it was the IAA's acceptance of this evidence which formed the rationale which underpinned its reason for not using its power to obtain the document.
6. What that effectively means for the applicant's argument, is that the applicant is contending that, had the Secretary provided a copy of an order which had clearly been superseded by subsequent orders and events, it may have had a material effect on the IAA's reasoning. The applicant contends that, had the IAA had regard to the document, it would have noted:

(a) the separation of the applicant and his wife was not permanent, as the order was temporary;

(b) the applicant was prohibited by force of law from seeing his wife during the relevant period; and

(c) the order for protection permitted the applicant to have contact with his wife for the purpose of having contact with his children.

1. However, the IAA expressly accepted the applicant's own evidence. That evidence was to the effect that the order was temporary, it had been extended by a year, that it was an offence to see his family prior to the expiration of the order, and that it had expired at the time of the SHEV interview in 2018. Those were all matters taken into account and accepted by the IAA and entirely in line with the factors set out above that the applicant says may have been taken into account had the document been before the IAA.
2. The applicant also asserted that the IAA proceeded on an erroneous basis that the order had expired but that this was inconsistent with the document which, on its face, was ongoing. Counsel for the applicant accepts that this was in fact the applicant's evidence, but contrasts this against the temporary and ongoing nature of the order. It is asserted that the applicant must have been confused about the scope of the order during the interview. However, that submission simply ignores the other information in the material which indicates that there were subsequent court proceedings and presupposes that an order would have continued in perpetuity notwithstanding:

(a) subsequent court dates where orders would be expected to be made;

(b) the applicant's clear and repeated answers that the order had been varied, extended and had expired; and

(c) the applicant's evidence (also taken into account by the IAA) that he had seen his family, albeit for short periods, in 2016 and 2017.

1. The applicant's argument thus asks the Court to accept that, had the IAA had regard to the temporary protection order, it might have considered that no further orders were made at the subsequent hearing, to ignore the applicant's own evidence as confused and to accept that the applicant saw his family on two occasions which, on the applicant's argument, would purportedly be in breach of an ongoing protection order. In the Court's view, if the IAA had acted in that fashion, it would have been irrational. In considering materiality, the Court should not speculate that it could have been material because the IAA may have engaged with that material in an irrational manner.
2. The Court is therefore of the view that failure to provide the temporary protection document, whilst a breach of s 473CB, was not material as it could not have made any difference to the IAA's reasoning in respect of its findings on this aspect, or the decision as a whole. The protection order was only relevant in demonstrating the situation at a specific point in time in respect of the prohibition upon the applicant seeing his family. That was a situation which would have changed shortly thereafter and where there was probative and logical evidence from the applicant himself as to what had occurred.
3. The Court is also not satisfied that the IAA acted unreasonably in not requesting the documents from the Secretary. It is clear that the IAA was alert to the fact that the Secretary had failed to provide those documents, and it expressly considered whether it should use its power to request that material from the Secretary. Furthermore, it gave cogent and rational reasons as to why it elected not to request the material from the Secretary. That is, the IAA noted that it had accepted the applicant's evidence to the delegate that he had been subject to a court order which required him to be separated from his wife and children and that it was an offence to see them prior to the expiration of the court order. There was nothing unreasonable about the IAA's approach or findings in this respect.

1. The Court records its appreciation of the pro bono assistance provided by Mr Blackman and those instructing him. The Court is grateful not only for their willingness to assist but also for the diligent and professional manner in which they attended to this matter. In doing so, the following observations of French J (as he then was) in Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at [216] are brought to mind:

The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.

1. Nevertheless, neither of the applicant's grounds have succeeded in establishing jurisdictional error and, accordingly, the application is dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.