Federal Court of Australia

FCF17 v Minister for Immigration and Multicultural Affairs [2025] FCA 197

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.    The appeal be dismissed with costs, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from a decision of a single judge of the Federal Circuit and Family Court of Australia (Division 2) in FCF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 981 (FCFCOA Decision). The FCFCOA Decision affirmed a decision of the Immigration Assessment Authority (IAA) not to grant the appellant a Protection (Subclass XE-790) Safe Haven Enterprise visa (Visa) (IAA Decision). The IAA Decision in turn had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the Visa (Minister’s Decision) to the appellant. The appellant relies on a sole ground of appeal, namely:

The primary judged erred by failing to find that the [IAA] was required, and failed, to consider whether the appellant was owed protection obligations as a members of the same family unit as one or both of his minor daughters, in respect of whom a claim based on a risk of sexual violence was made by the appellant and/or squarely arose on the material before the authority.

(Errors in original)

2    It is not in dispute that a key issue raised by the ground of appeal is the alleged failure of the IAA to consider relevant criteria under s 36(2)(b) or (c) of the Migration Act 1958 (Cth) (Migration Act). More specifically, the appellant argues that the IAA had a duty to consider whether the appellant was a member of the same family unit as a person who satisfied the criteria in s 36(2)(a) or (aa) of the Migration Act, namely one or both of his daughters.

3    In summary, the appellant seeks the following relief:

(1)    The appeal be allowed.

(2)    The orders of the primary Judge be set aside and in lieu thereof there be orders that:

(a)    The IAA’s decision be quashed.

(b)    A writ of mandamus be issued directing the IAA to determine the matter in accordance with law.

(c)    The first respondent (Minister) pay the appellant’s costs of the proceeding before the FCFCOA.

(3)    Costs of the appeal.

4    In my view, for the reasons outlined below, the appeal should be dismissed with costs.

Background

5    The appellant is a Sri Lankan citizen of Tamil ethnicity. As a child the appellant moved with his family from Sri Lanka to India in 1990. He lived in India until his arrival in Australia by boat in April 2013. The appellant arrived in Australia with his wife and their two children, aged nine and seven. The appellant’s wife was an Indian citizen.

6    Upon his arrival to Australia, the appellant was the subject of arrival and induction interviews with Officers from the Department of Immigration and Citizenship (Interviews). In the course of the Interviews, the appellant informed the Officers of his reasons for arriving in Australia. In summary, those reasons were:

    The appellant and his children did not have citizenship rights in India.

    The appellant could not live peacefully in Sri Lanka because most of his family died in the war.

    The appellant did not want to return to Sri Lanka because he wanted a peaceful life, and for his children to receive a good education.

    The appellant’s female cousin had been sexually assaulted in Sri Lanka and his aunt had told him “do not bring back children here”.

    The appellant was concerned for the safety of his children if he were to return to Sri Lanka.

7    The appellant and his wife separated after their arrival in Australia.

8    On 26 November 2015, the appellant applied for the Visa on his own behalf (Visa Application). It is not in dispute that the appellant did not mention his daughters as family members in the Visa Application, nor consequently did he claim that his daughters were persons owed protection under s 36(2) of the Migration Act.

9    On 7 April 2017, the Minister notified the appellant that the Visa Application had been refused. As the primary Judge noted, although the Delegate of the Minister accepted that the appellant was a Tamil failed asylum seeker and could be suspected of being a supporter of the LTTE, and that his fears of being arrested and killed amount to “serious harm”, the Delegate did not accept that his fear of persecution was “well-founded”. It followed that the Delegate was not satisfied that:

    the appellant was a person in respect of whom Australia owed protection obligations pursuant to s 36(2)(a) of the Migration Act, or

    there was a real risk of significant harm to the appellant if he returned to Sri Lanka, such that he was not owed complementary protection pursuant to s 36(2)(aa) of the Migration Act.

10    The Minister’s Decision was referred to the IAA on 12 April 2017. As the primary Judge observed:

[18]    …

(a)    The IAA accepted that:

(i)    The Applicant is a national of Sri Lanka of Tamil ethnicity;

(ii)    The Applicant, together with his family, travelled to India illegally in 1990 to escape the civil war in Sri Lanka, during which a number of his extended family members were killed;

(iii)    The daughter of his uncle was sexually assaulted by the Sri Lankan Army;

(iv)    The Applicant’s details may have been obtained by the Sri Lankan authorities as a result of the Department’s data breach in 2014, and that he may be identifiable as having sought protection in Australia; and

(v)    There is a possibility the Applicant may be charged under the Immigrants and Emigrants Act (I & E Act) upon his return to Sri Lanka, and subsequently detained in a Sri Lankan prison for a brief period.

(b)     The IAA did not accept that:

(i)    The Applicant’s father, cousin or brother-in-law were members of or had any involvement with the LTTE, nor had they ever been detained or arrested by Sri Lankan authorities for such involvement;

(ii)     Sri Lankan authorities have made enquiries about the Applicant and his family; and

(iii)     The Applicant has been told by his brother-in-law that if he returns to Sri Lanka, he will be arrested and killed.

11    The IAA was not satisfied that the appellant met the requirements for a Visa in ss 36(2)(a) or (aa) of the Migration Act, and affirmed the Minister’s Decision.

Decision of the PRIMARY JUDGE

12    The appellant sought judicial review of the IAA’s decision in the FCFCOA. The appellant relied on three grounds of review, in summary:

(1)    The IAA misapplied the “real chance” test and/or asked itself the wrong question at [55] of its decision by importing a comparative or relative element into its analysis of whether the appellant faced a risk of torture or mistreatment as a returnee to Sri Lanka;

(2)    In assessing the appellant’s claim to face a risk of harm because of his family’s involvement with the LTTE, the IAA misunderstood its task by failing to treat the content of an enhanced screening interview or an induction interview with the requisite degree of caution; and

(3)    The IAA failed to consider whether the appellant was owed protection obligations as a member of the same family unit as one or both of his (then) minor daughters, in respect of whom claims based on a risk of sexual violence were made by the appellant and/or squarely arose on the material before the IAA.

13    Ground of review (3) was particularised as follows:

a) The Applicant made a claim, alternatively a claim squarely arose on the material before the Authority, that the Applicant’s minor daughters (with whom the Applicant had travelled to Australia) faced a risk of sexual violence in Sri Lanka.

b) In accordance with s 36(2)(b) or (c) of the Migration Act 1958 (Cth), the Authority was required to consider whether the Applicant’s daughters were persons who were owed protection obligations because they faced a risk of sexual violence in Sri Lanka, and then to consider whether the Applicant was also owed protection obligations as a member of the daughters’ family unit.

c) The Authority failed to consider whether the Applicant’s daughters were persons who were owed protection obligations, or whether the Applicant was owed protection obligations as a member of the daughters’ family unit.

14    The primary Judge found that none of the grounds of review were substantiated, and dismissed the application for judicial review.

15    I note that it is only the issues examined by the primary Judge in respect of ground of review 3 which are relevant to the present appeal before me. In respect of that ground of review, her Honour noted:

71.    The Court understands that there is no dispute between the parties that at the time of the Visa Application, the Applicant’s daughters were under 18, thus being members of his family unit pursuant to s 5 of the Migration Act and r 1.12(2)(b)(i) of the Migration Regulations 1994 (Cth). Also not in contention is the fact that had a protection claim been made by the Applicant in respect of his daughters, the IAA would have needed to consider the claim.

72.    The Applicant’s Submissions point to the Applicant’s claim, referred to in the Delegate’s Decision, and of which the IAA was aware, raised at an induction interview that the daughter of his uncle was raped in Sri Lanka, and questioning how he could return there with his children if that was the case. The Applicant contends that it is this claim, which may be taken as advanced by the Applicant or arising from the material, which the IAA was required to consider, particularly in light of its acceptance that the sexual assault of the Applicant’s uncle’s daughter by the SLA did in fact occur.

16    Her Honour observed at [73] that the specific nature of the jurisdictional error allegedly committed by the IAA referable to ground of review 3 was in the failure of the IAA to consider whether the appellant was owed protection as a member of his daughters’ family unit, subsequent to its assessment of whether the daughters’ themselves were owed protection obligations due to facing a real risk of sexual violence in Sri Lanka.

17    Her Honour further noted at [74] the submission of the Minister that, contrary to the appellant’s claims, no protection claim with respect to the appellant’s daughters arose from the material before the IAA, and nor did the appellant raise it as an independent claim at any point during the Visa Application or interview process. Rather, the Minister submitted that the IAA properly dealt with the information regarding the sexual assault of the appellant’s cousin, ultimately concluding that such an occurrence was not connected to the appellant nor “had any ongoing repercussions” for him. The Minister further submitted to the primary Judge that, in relation to principles applicable to when a decision-maker would be required to consider a claim:

    A claim must have been raised squarely, or clearly arise from, the material before the decision-maker: CXB20 v Minister for Home Affairs [2020] FCA 1667 at [41];

    It must be shown that the appellant ‘sufficiently raised the relevant issue’: DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222 at [16];

    A decision-maker is not required to consider a claim that is not expressly made or is not ‘tolerably clear’ from the materials before it: DFU16 at [17], citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15];

    It is not the task of the decision-maker to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been: DFU16 at [17], citing NAVK at [15]; and

    It is not for a reviewing court to retrospectively piece together a possible claim that might have been made before the decision-maker: DFU16 at [20], citing MZAJC v Immigration and Border Protection [2016] FCA 208 at [12].

18    The primary Judge noted the submission of the Minister that, on the basis of those principles and the material before the IAA, there was no error on the part of the IAA in not considering a protection claim in respect of the appellant’s daughters.

19    The primary Judge at [78] observed that to establish this ground of review, the appellant was required to prove that the matters concerning the claim that the appellants daughters were at risk of sexual violence:

    were raised squarely, or clearly arose from, the material before the IAA;

    relied upon established facts;

    were not considered by the IAA when considering whether to grant the Visa; and

    were substantial, or material, in the sense that consideration of the arguments might have resulted in a different decision.

20    The primary Judge noted at [79] that:

    The appellant and his wife separated shortly after arriving into Australia; and

    The only other members of the appellant’s family listed in the Visa Application were his mother and sister.

21    When the appellant applied for the Visa on 26 November 2015:

    he applied on his own behalf only;

    he did not list either of his daughters as members of his family unit; and

    did not claim that his daughters were persons owed protection under s 36(2) of the Migration Act, or that he sought to satisfy the criteria of the Visa as a member of their family unit.

22    Her Honour relevantly observed:

80     Although the IAA was aware that the Applicant had arrived in Australia with his wife and daughters, taking into account the considerations in CXB20 at [41] and DFU16 at [18] to [20], I conclude that no claim that they had a well-founded fear of persecution squarely arose from the material before the IAA. The IAA therefore did not fail to consider any claim that squarely arose that the Applicant’s daughters were at risk of sexual violence. The IAA properly considered information provided by the Applicant that his female cousin had been raped or sexually assaulted by a member of the Sri Lankan Army. In assessing this information the IAA concluded that:

38.     I accept the applicant’s uncle’s daughter was sexually assaulted by the SLA. However at the enhanced screening interview the applicant’s own evidence was that as a result of this event this person had left Sri Lanka. The applicant has made no mention of any claims of harm on return on this basis nor am I satisfied that this event is in any way connected to the applicant or had ongoing repercussions for the applicant.

81     In doing so, I am satisfied that the IAA properly considered the extent to which this information informed any claim of the Applicant. It was open to the IAA to conclude that the Applicant did not make any claim on the basis of this information about his cousin being sexually assaulted, and to conclude that this event had no ongoing repercussions for the Applicant and from which it can be inferred that would extend to his daughters.

82     The Court notes finally that the Applicant’s Submissions at paragraph [27] state:

27.    Notably, the Applicant’s daughters currently hold Safe Haven Enterprise Visas, and one of them remains a minor.

83     Counsel for the Minister submitted that it is not relevant that the Applicant’s daughters currently hold Safe Haven Enterprise visas (Protection Visas) for the following reasons. There was no evidence before the IAA to the effect that the Applicant’s daughters had been granted Protection Visas. There is no evidence before this Court whether their Protection Visas were based on the daughters’ own claims to fear harm or were derivative claims based on the mother’s application herself for a Protection Visa. There is no evidence before the Court as to whether the daughters were granted Protection Visas on the basis of risk of harm to them in Sri Lanka or whether India was the country of assessment with respect to the daughters. Further, there is no evidence as to whether their Protection Visas were granted on the basis of risk due to sexual harm. Therefore, Counsel for the Minister submitted that the Court should not find it ‘notable’ that the Applicant’s daughters are said to currently hold Protection Visas. I agree with those submissions.

84     No jurisdictional error can be found in Ground 3. Ground 3 is therefore dismissed.

(Footnotes omitted)

AppelLant’s submissions

23    In summary, the appellant submitted:

    At the time of the IAA Decision, the appellant was a member of the same family unit as his daughters under the Migration Act and Migration Regulations 1994 (Cth) (Migration Regulations) because his daughters were “dependent child[ren]” pursuant to reg 1.03 of the Migration Regulations. This remained true even after the appellant separated from his then-wife.

    By virtue of the record from the advanced screening interview conducted by the Minister (which was put before the IAA), the IAA was aware that the appellant and his daughters were part of the same family unit.

    As the IAA was aware that the appellant was part of the same family unit as his daughters, it was obliged to consider the appellant’s eligibility against s 36(2)(b) and (c) of the Migration Act if it determined he did not meet the requirements of s 36(2)(a) or (aa) of the Migration Act.

    The IAA was obliged to consider the appellant’s eligibility against s 36(2)(b) and (c) of the Migration Act irrespective whether the appellant explicitly raised a ‘claim’ under that section. In any event, the appellant did raise a claim that he feared his daughters faced a real risk of significant harm.

    The IAA was required to review all of the material put before it, including the records of the Interviews wherein the appellant expressed his fear that his daughters could be subjected to harm, because his uncle’s daughter had been sexually assaulted.

    The primary Judge erred in relying on the fact that the Visa Application did not expressly list the appellant’s daughters as members of his family unit. In both written and oral submissions, the appellant noted the fact the Visa Application was completed by the appellant without substantial assistance and while in immigration detention. Counsel for the appellant submitted that by virtue of certain markings on the Visa Application, it was clear someone had told the appellant which sections of the Visa Application to complete. However, there is no evidence as to the nature or degree of assistance rendered to the appellant in completing the Visa Application.

    Although the Visa Application failed to mention the appellant’s daughters as members of his family unit, vast sections of the Visa Application were left blank. As such, the “form” of the Visa Application should not be treated as conclusive.

    There was no requirement that visa applicants apply for Visas as part of a single application to satisfy s 36(2)(b) or (c) of the Migration Act. Section 91WB of the Migration Act only requires that the application is made before the family member is granted a Visa. This requirement was met as the appellant’s daughters were granted Visas well after the appellant’s Visa Application.

    Contrary to the primary Judge’s reasons, it was immaterial that the FCFCOA was unaware whether the appellant’s daughters had been granted Visas in their own right, or on the basis of being in the same family unit as their mother.

    The IAA was obliged to consider whether it was satisfied that either of the appellant’s daughters satisfied s 36(2)(a) or (aa) of the Migration Act. That obligation was not altered by whether or not the IAA had, in a separate review, considered the risk of harm faced by the appellant’s daughters. The appellant relied on consent orders in CTT22 v Minister for Immigration, Citizenship and Multicultural Affairs MLG1003/2023 in submitting that the Minister has previously acknowledged an analogous submission to that made by the appellant here.

    In any event, the primary Judge erred in finding that no claim was made or arose from the material before the IAA that triggered its obligation to consider s 36(2)(b) or (c) of the Migration Act.

    If the IAA believed it did not have sufficient information to assess the appellant’s daughters against s 36(2)(a) or (aa), it was open for the IAA to seek new information from any person under s 473DC of the Migration Act.

    The IAA, on any view, failed to consider whether the appellant satisfied s 36(2)(b) or (c) of the Migration Act and therefore failed to complete its statutory task. The primary Judge erred in finding to the contrary.

    It is irrelevant to the consideration of this matter whether the appellant’s daughters had been granted Visas at the time of the IAA’s review. That is so because that goes to the question whether s 36(2)(b) or (c) of the Migration Act were actually satisfied, which is not the question before this Court. Further, considering whether the appellant’s daughters were entitled to Visas would be to misconceive the IAA’s jurisdiction, which does not include a power to grant or deny visas.

    The words “has been granted a visa” in s 36(2)(b) and (c) of the Migration Act were not to be considered by the IAA. In the context, the question before the IAA was whether the appellant’s daughters satisfied s 36(2)(a) or (aa) of the Migration Act. Whether or not the appellant’s daughters had been granted a visa was only to be considered by the Minister if the decision was remitted. Counsel for the appellant submitted that the literal reading of the words “has been granted a visa” would make it impossible for any applicant to succeed in the IAA where family members’ applications were considered together, which is often the case. Counsel for the appellant relied on CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 in this respect.

first Respondent’s submissions

24    In summary, the first respondent submitted:

    Sections 36(2)(b) and (c) each require an applicant to satisfy three criteria, namely that applicant is “a non-citizen in Australia who is a member of the same family unit as [a second] non-citizen”, that the second non-citizen satisfies the definition of refugee in s 36(2)(a) (s 36(2)(b)(i)) or the complementary protection requirements in s 36(2)(aa) (s 36(2)(c)(i)), and that the second non-citizen “holds a protection visa of the same class as that applied for by the applicant” (s 36(2)(b)(ii) or s 36(2)(c)(ii)).

    There was no dispute that at the time of the Visa Application the appellant’s daughters were under 18 and therefore members of his family unit pursuant to s 5 of the Migration Act and reg 1.12(2)(b)(ii) of the Migration Regulations.

    When this matter was before the primary Judge the appellant did not submit that his daughters held Visas when the IAA was undertaking the review. Rather, he submitted that his daughters “currently held” Visas. Accordingly, the appellant failed to submit that the third criterion of s 36(2)(b) and (c) of the Migration Act was met.

    The appellant’s reliance on the consent orders made in CTT2 on 10 October 2023 was misplaced because those orders provided very limited explanation of the circumstances in CTT2.

    Of more relevance is the decision of O’Bryan J in ANA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 554 where his Honour found that the question was not whether the appellant in that case could have succeeded in a claim under s 36(2)(b) and (c) of the Migration Act, but whether that claim was put before the delegate.

    The principle that the IAA is not required to consider whether an applicant may satisfy s 36(2)(b) and (c) of the Migration Act unless that claim is put before the IAA applies equally whether or not the relevant family member is over 18.

    The Court should also note the decision of Bromberg J in BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324 where his Honour considered that the relevant question to be answered by the Court was whether the material before the authority was capable of demonstrating that the appellant did make the relevant claim.

    The High Court recognised in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17] that the IAA “need not conduct a review in relation to a case not advanced by a visa applicant”.

    In circumstances where the appellant’s former wife was a citizen of India, their separation was relevant to the primary Judge’s assessment of whether the appellant made or maintained any claim to fear harm for his daughters if they were to go to Sri Lanka.

    The appellant’s failure to list his daughters as members of his family unit should inform whether the appellant made a claim that his daughters were owed protection under s 36(2)(a) or (aa) of the Migration Act.

    The mere fact that the IAA was aware that the appellant had arrived in Australia with his daughters was not sufficient to squarely give rise to a well-founded fear of persecution on the part of the appellant before the IAA.

    The Court should not accept that a claim under s 36(2)(b) and (c) of the Migration Act squarely arose merely because the appellant’s former wife and daughters had applied for a Visa.

    Regulation 790.21(b)(3) of the Migration Regulations provides that the relevant family member under s 36(2)(b) or (c) of the Migration Act must “be an applicant for a [Visa]”. Contrary to that requirement, there was no evidence that at the relevant time, the appellant’s daughters had applied for a Visa.

    It was relevant that the appellant had listed certain family members (his mother and sister) on his Visa Application but had failed to list his daughters.

    Although the appellant did not have legal representation at the time of the Visa Application, he did have assistance from the Asylum Seeker Resource Centre at the time he made submissions to the IAA.

    The IAA’s obligation was to consider the application put before it, and not to infer, from the fact that a family relationship exists, that another claim was being made.

CONSIDERATION

25    In substance, the appellant claims that the IAA failed to consider whether the appellant satisfied s 36(2)(b) or (c) of the Migration Act and therefore failed to complete its statutory task. Section 36 of the Migration Act provides, relevantly:

(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia’s security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2) A criterion 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; or

(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

26    The expression “member of the same family unit” is defined in s 5 of the Migration Act as follows:

"member of the same family unit": one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

27    A “dependent child” is deemed to be a member of the same family unit as a parent for the purposes of a Visa: regs 1.03 and 1.12(4) of the Migration Regulations.

28    The obligation on a visa applicant to clearly state the nature of their claim was explained by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263. In that case Black CJ, French and Selway JJ stated:

58    The review process is inquisitorial rather than adversarial. The tribunal is required to deal with a case raised by material or evidence before it.

…

It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligations of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.

…

60    …It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

…

62    Whatever the scope of the tribunal’s obligations, it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa…

29    The test to be applied in cases such as this was also outlined helpfully by Rangiah J in CXB20 v Minister for Home Affairs [2020] FCA 1667. There, his Honour stated:

[41]    For the appellants to establish jurisdictional error on the basis of a failure to take into account the three matters set out above, it must be established that they:

(1)    were raised squarely, or clearly arose from, the material before the Authority;

(2)    rely upon established facts;

(3)    were not considered by the Authority when determining whether to grant the visas;

(4)    were substantial, or material, in the sense that consideration of the arguments might realistically have resulted in a different decision.

30    In the present case, the appellant claimed error on the part of the IAA, and in turn the primary Judge, in respect of findings concerning the nature of the appellant’s claims. In oral submissions, the appellant identified key questions raised in the present appeal as:

(1)    Was the material before the IAA capable of demonstrating that the appellant claimed to be a member of the same family unit as his daughters? and

(2)    Was the material before the IAA capable of demonstrating that the appellant claimed that his daughters were persons who satisfied paragraph (a) or (aa) of s 36(2) of the Migration Act?

31    The appellant further submitted that if the answer to each of those questions was in the affirmative, the IAA was obliged to assess the appellant’s application under of s 36(2)(b) and (c) of the Migration Act.

32    The facts appear to demonstrate that, at least at the time of the Visa Application, the appellant had two minor daughters, and he was a member of the same family unit as they. This fact was accepted by the primary Judge at [71] of her Honour’s reasons, and plainly in the mind of the IAA as demonstrated by the following observation of the IAA in the IAA Decision:

18.    The referred materials indicate that the applicant arrived in Australia with his wife and two children. The protection visa application does not list the applicant’s wife and children as persons included as part of the application. At the protection visa interview, the applicant stated after his wife and children arrived in Australia they separated and his wife has since met someone else. His wife has sent him divorce papers. He has been upset that his wife had left him and was asking for a divorce and he was missing his children. He has seen the doctor and has asked for counselling and medication. No other evidence has been provided as to any medical condition or treatment.

33    The key issue accordingly is whether the material before the IAA was capable of demonstrating that the appellant claimed that his daughters were persons who satisfied paragraph (a) or (aa) of s 36(2) of the Migration Act.

34    The decisions of this Court in ANA17 and BYR17 are of assistance in considering this issue.

35    In ANA17 O’Bryan J observed:

34    The relevant question to be determined by this Court, however, is not whether the appellant satisfies this definition and therefore could have succeeded in claiming that he is a member of the same family unit as his father. Rather, the question is whether the material before the delegate, and subsequently the IAA, in fact contained such a claim such that the primary judge erred in not recognising the claim when dismissing the appellant’s application for review.

…

37    I do not consider that by ticking the “same family unit” box in his SHEV application, the appellant (or the appellant’s father) made a claim that the appellant’s application should be considered on the basis that he is a member of the same family unit as his father, with the result that his application should be assessed against the family unit criteria in subss 36(2)(b) and (c) of the Act, as well as subss 36(2)(a) and (aa). A number of matters support this conclusion.

36    His Honour found that reasons for his conclusion included:

    Nowhere in the appellant’s statutory declaration accompanying his application for a visa did the appellant claim to be owed protection as a member of the same family unit as his father; and

    There was nothing to suggest that the delegate treated the appellant and his father as making claims on the basis of being members of the same family unit.

37    His Honour continued:

44    In my view, the delegate’s finding reflects the delegate’s understanding that the appellant had not claimed to be a member of the same family unit as any other person. If the delegate’s understanding was incorrect, it could be expected that this would have been addressed by the appellant’s lawyers when they made submissions to the IAA. Before the IAA, however, no submission was made that the appellant was a member of the same family unit as his father. For this reason, no finding was made on the point by the IAA. Further, no allegation of jurisdictional error in this respect was made in the application for review to the primary judge.

45    I note for completeness that the Minister sought to rely on material in an earlier invalid protection visa application dated 13 August 2013. In that application, the appellant answered “no” to the question of whether there were any members of the same family unit in Australia but not included in his application. In my view, the contents of that application have no bearing on whether the appellant, in his later (valid) application for a SHEV, made a claim to be owed protection as a member of the same family unit as his father.

46     For the reasons set out above, I consider that the appellant did not make a claim that he was a member of the same family unit as his father within the meaning of the Act. It follows that the primary judge did not err in failing to set aside the IAA’s decision in respect of the appellant as a consequence of setting aside the IAA’s decision in respect of the appellant’s father. I therefore dismiss appeal ground one.

38    In BYR17, the appellant – whose younger brother had received a safe haven visa – contended that the primary Judge was wrong to conclude that he did not raise before the IAA a claim that he was a member of the same family unit as his brother. The appellant conceded that no such claim had been expressly articulated by him, but contended that the claim was raised by the material or evidence before the IAA. Justice Bromberg observed:

[19]    The Minister submitted that any failure to consider the Family Unit Claim does not constitute jurisdictional error as, in accordance with the principles in NABE, the claim was neither expressly advanced nor apparent on the face of the material before the Authority.

[20]    Whether an applicant before the Authority has made a claim is a question to be objectively determined. Consequently, in order to determine whether the Family Unit Claim was apparent on the face of the material before the Authority, it is necessary to consider the material before the Authority.

39    His Honour continued:

[25]    The question is not whether the appellant satisfied the definitions of Family Unit Criteria and therefore could have made the Family Unit Claim. The question is whether the material before the delegate, and subsequently the Authority, was capable of demonstrating that the appellant did make the claim. Put another way, the capacity of the material to support an argument that the appellant satisfied the Family Unit Criteria does not of itself make it apparent that the appellant made such a claim.

40    In my respectful view, the observations of their Honours in the above cases equally apply in the case before me.

41    As I noted earlier in this judgment, the appellant claimed that the question whether his daughters were persons to whom Australia had or prospectively had protection obligations was squarely raised before the IAA because of his statements in the Interviews concerning his daughters.

42    The appellant sought to distinguish ANA17 and BYR17 largely on the basis that those cases involved family units where all relevant family members were over 18. Counsel for the appellant submitted that because family members over the age of 18 are not automatically dependant (and therefore members of the same family unit), the obligation to consider whether s 36(b) or (c) of the Migration Act applied was not automatically enlivened. In my view, those cases cannot be distinguished in the way submitted by the appellant. Following the logic of the appellant’s submissions before this Court, the decision maker in those cases would have been obliged to consider s 36(b) or (c) of the Migration Act regardless of the age of the family member. Simply because a further step of reasoning would have been necessary to determine membership of a family unit (i.e. whether the adult family member was dependent on the applicant) an obligation to consider s 36(b) or (c) of the Migration Act would not have been extinguished.

43    During the hearing of 5 August 2024, Counsel for the appellant directed me to certain passages of BYR17. Those passages stated:

[27]    Even accepting that the material before the Authority was potentially relevant to a claim that the appellant was a member of the same family unit as his brother, it is necessary to take into account the context in which that material was put forward by the appellant. The appellant’s evidence of the mistreatment of his younger brother was provided in the context of his own claims to fear harm from his father as a Christian. It was open and more rational for the Authority to regard it as corroborative evidence relied on to establish why the appellant’s fears were well-founded rather than as a foundation for the Family Unit Claim..

[29]    This is not a situation where certain material was put before the delegate or Authority that could only have been relevant to a particular claim, and from that material it was reasonably apparent that the particular claim was being made.

44    I am not persuaded that these passages support the appellant’s case in the manner asserted by the appellant. The reference by the appellant in his source material before the IAA to the sexual assault of his uncle’s daughter was not such that it could only have been relevant to a particular claim concerning his daughters (and himself) and therefore enlivened the IAA’s obligations to consider a claim under s 36(b) or (c) of the Migration Act.

45    In any event, it is clear that the IAA did consider the appellant’s statements regarding the sexual assault of his uncle’s daughter. Paragraph 38 of the IAA Decision stated:

I accept the applicant’s uncle’s daughter was sexually assaulted by the SLA. However, at the enhanced screening interview, the applicant’s own evidence was that as a result of this event this person had left Sri Lanka. The applicant has made no mention of any claim of harm on return on this basis, nor am I satisfied that this event is in any way connected to the applicant or had ongoing repercussions for the applicant.

46    By paragraph 38 of the IAA Decision, it considered the appellant’s statements at the Interviews and determined that they were in no way connected to the appellant. That is a finding that was open on the material before the IAA.

47    I accept that by reason of the record of the Interviews, information that the appellant arrived in Australia with his daughters, and that his uncle’s daughter had been sexually assaulted, was in the material before the IAA. I also note that the appellant had in his Interviews, mentioned his concern about returning to Sri Lanka with his daughters. However, those matters were before the IAA in circumstances where they:

    were not raised in the Visa Application; and

    were not raised at any further point following the Interviews in the course of seeking the Visa.

48    I am satisfied that the material before the IAA did not squarely raise the prospect of the appellant’s daughters being owed protection obligations by Australia, such that the appellant himself would have been able to make a visa application referable to those protection obligations as a member of the same family unit as his daughters.

49    Counsel for the appellant placed significant weight on the fact that the Visa Application was made without legal assistance and while the appellant was in immigration detention. However, the appellant was clearly aware of the relevant section of the Visa Application where his daughters could have been listed as family members as he listed and provided the details of his mother and sister. It was not the task of the IAA to infer what the appellant could, or indeed should, have included in the Visa Application. Accordingly, I do not accept the appellant’s submission that significant weight should be placed on the circumstances in which the Visa Application was made.

50    For completeness, I also note the appellant’s reliance on consent orders in CTT22. Although the Minister consented to an application being reverted to the IAA by those orders, they contain little to no detail regarding the reasons for such consent. In my view, those orders do not contain sufficient detail for me to place any weight on them.

51    Finally, I note that while each case plainly must be determined on its own facts, I note that cases where the Court has concluded that a claim was squarely raised before the IAA (or comparable decision maker) have tended to involve a much more explicit and unambiguous presentation of the nature of the relevant claim before the decision maker than was before the IAA in the present case: see, for example CXB20, CTY17 v Minister for Immigration & Border Protection [2019] FCA 197, AQS15 v Minister for Immigration and Border Protection [2016] FCA 1362, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 184.

52    In the circumstances, it cannot be said that an unarticulated claim on the part of the appellant, that his daughters were owed protection obligations under s 36(2)(a) or (aa) of the Migration Act and that he in turn was owed protection under s 36(2)(b) or (c) of the Migration Act, was squarely raised or clearly arose before the IAA on the material before it.

53    Given the materials before this Court, and the reasons given by the primary Judge at [70] to [84] of the FCFCOA Decision, no error appears in the reasoning of the primary Judge.

conclusion

54    The appeal should be dismissed, with costs.

Associate:

Dated:    13 March 2025