GQN18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 935

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. On 20 December 2018, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 22 November 2018. The IAA affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV) under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. In June 2013, the applicant, a male citizen of Sri Lanka with Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival.
2. On 21 August 2017, the applicant lodged an application for a SHEV, claiming to fear harm if returned to Sri Lanka. The criteria for a SHEV are set out in Part 790 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
3. On 8 June 2018, a delegate of the first respondent refused to grant the applicant a SHEV.
4. On 14 June 2018, the matter was referred to the IAA for review under Part 7AA of the Act.
5. On 5 July 2018, 25 July 2018 and 1 November 2018, the applicant's representative provided submissions to the IAA.
6. On 22 November 2018, the IAA made a decision affirming the delegates' decision not to grant the applicant a SHEV.

1. The IAA at [3]-[5] considered the three sets of submissions provided by the applicant's representative to the IAA between July and November 2018. Where the submissions referred to "new information" as defined in s 473DC(1) of the Act, the IAA considered, on application of s 473DD of the Act, whether it could consider the new information.

1. The IAA at [7]-[21] made factual findings concerning the applicant's problems in Sri Lanka up to the time he (as a child) and his family went to India in 1990, the applicant's problems in India between 1990 and 2013 when he came to Australia, and the applicant's time in Australia. Although the applicant claimed to fear harm on return to Sri Lanka because the Sri Lankan authorities believed he or family members were involved with the LTTE, the IAA at [14]-[15] did not accept that the applicant or any immediate family members were involved in the LTTE or suspected of being involved in the LTTE.

1. Clause 790.221(2) in Schedule 2 to the Regulations states as a criterion for a SHEV that the applicant satisfies the criterion in s 36(2)(a) of the Act, which in turn requires the applicant to be a "refugee" within the meaning of s 5H(1) of the Act. The IAA at [23]-[57] considered whether the applicant was a "refugee" as defined in s 5H(1). The IAA at [57] concluded that "the applicant does not meet the requirements of the definition of refugee in s 5H(1)".

1. Clause 790.221(2) in Schedule 2 to the Regulations states as an alternative criterion for a SHEV that the applicant satisfies the criterion in s 36(2)(aa) of the Act. The IAA at [58]-[64] considered whether the applicant satisfied this criterion. The IAA at [64] concluded that "the applicant does not meet s 36(2)(aa)".

Judicial review application and steps up to hearing on 30 May 2025

1. On 20 December 2018, the applicant filed in this Court an application for judicial review of the IAA's decision. The application contained five grounds (as written) (Application).
   1. Identifying wrong issues
   2. Asking wrong questions
   3. Ignoring relevant materials
   4. Relying on irrelevant material or
   5. Incorrect interpretation and/or application to the facts applicable to law
2. Following a period of inactivity, on 25 February 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve 28 days before the hearing any amended application and a written submission.
3. On 7 April 2025, the registry of the Court notified the parties that the matter was listed for hearing on 30 May 2025.
4. On 16 May 2025, the first respondent filed a written submission (RS).
5. The applicant did not file an amended application or written submission before the hearing on 30 May 2025.

1. At the hearing in this Court on 30 May 2025, the applicant appeared in person assisted by a Tamil interpreter, and Jessica Schultz from Mills Oakley appeared for the first respondent.
2. The applicant brought to court a copy of a Court Book filed and served by the first respondent in February 2019 which contained the IAA's decision and documents which were before the IAA. At the commencement of the hearing, I directed the applicant's attention to the IAA's decision and explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error, which I described as a significant error or mistake, in the IAA's decision. With reference to the IAA's written reasons for decision, I explained the main categories of jurisdictional error.
3. I offered the applicant a 10 minute break to consider oral submissions he wanted to make. The applicant took up this opportunity.
4. After the break, Ms Schultz tendered the Court Book. The applicant did not seek to rely on additional evidence.
5. The applicant made oral submissions. He stated that he can't identify a legal error in the IAA's decision because he does not know how to do this. He stated that he has lived in Australia for 12 years, and he does not know how he can return to Sri Lanka because none of his family live in Sri Lanka and he is old.
6. Ms Schultz, in her oral submissions, relied on the first respondent's written submission.

1. Grounds 1 and 2 are unparticularised. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 (NWWJ) at [37].
2. In any event, I agree with the first respondent's written submission at RS [42]-[44] that the IAA "correctly identified that the key issue in this matter was whether the applicant was owed protection pursuant to ss 36(2)(a) or 36(2)(aa) of the Act", the IAA "outlined the applicant's claims to fear harm and comprehensively considered those claims with reference to both ss 36(2)(a) and 36(2)(aa) of the Act", and the IAA "asked itself the correct question in applying the real chance and real risk test".
3. Grounds 1 and 2 do not identify a jurisdictional error in the IAA's decision.

1. Grounds 3 and 4 are unparticularised. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ at [37].
2. In any event, I agree with the first respondent's written submission at RS [53] that the IAA "considered all material it was statutorily required to" and "did not have regard to any irrelevant material".

1. Ground 5 is unparticularised. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ at [37].
2. In any event, no incorrect interpretation of the law or application of the law to the facts are apparent from the IAA's reasons for decision.

1. In light of the serious consequences for the applicant if there is a jurisdictional error in the IAA's decision and the fact he has not obtained legal assistance for his judicial review application, on application of the approach in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], "I have scrutinised the papers and the [IAA]'s reasons to see whether there was reviewable error" to the extent of "a mistake [which] clearly appears in the [IAA]'s reasons". No mistake clearly appears in the IAA's reasons for decision.
2. For the above reasons, the application to this Court must be dismissed.

1. Ms Schultz sought an order that the applicant pay the first respondent's costs in the amount of $3,071.60, which was the first respondent's party/party costs. The applicant did not oppose this amount. This amount is reasonable. I will make the order sought by Ms Schultz.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.