Federal Court of Australia

CSW17 v Minister for Immigration and Multicultural Affairs [2025] FCA 259

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs agreed or fixed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

INTRODUCTION

1    The appellant is a citizen of Sri Lanka and arrived in Australia on 27 August 2012 as an unauthorised maritime arrival. On 7 November 2015, the appellant applied for a Safe Haven Enterprise visa subclass XE under the Migration Act 1958 (Cth) (SHEV).

2    On 4 November 2016, the application for the SHEV was refused by a delegate of the first respondent pursuant to s 65 of the Act. The matter was then referred to the Immigration Assessment Authority pursuant to s 473CA of the Act.

3    On 9 June 2017, the Authority affirmed the decision of the delegate.

4    On 21 June 2017, the appellant sought judicial review of the decision before the Federal Circuit Court and Family Court of Australia (Division 2).

5    Before the primary judge, the appellant advanced one ground of review in which the appellant alleged a denial of “procedural fairness by the Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration”.

6    In a decision delivered on 25 May 2021, the primary judge found the allegation pleaded by the appellant was not particularised and, without some identification of the elements of the alleged denial of procedural fairness, lacked substantial merit. The application for judicial review was dismissed.

7    The appellant now appeals from the decision of the primary judge by notice of appeal filed 21 June 2021 and relies on one ground of appeal:

1.    The decision of the Federal Circuit Court is affected by jurisdictional error.

Particulars

a.    By taking into account irrelevant considerations.

b.    By not taking into account relevant considerations.

c.    By not taking into account the relevant country information.

d.    By agreeing with the IAA that it had asked a reasonable number of questions in order to ascertain the applicant's credibility and making a fair decision.

e.    By not finding the applicant met the provisions of complementary protection.

8    For the reasons which follow, the appeal is dismissed.

Legal Framework and fast-track review process

9    The appellant was classified as a fast-track applicant under s 473BB of the Act.

10    Under the fast-track process, the Authority reviews the decision based only on the materials before it and cannot accept new evidence or conduct interviews, except in exceptional circumstances pursuant to s 473DD.

Primary judge’s reasons

11    In considering the application for judicial review, the primary judge summarised the Authority’s reasons, noting the Authority set out relevant background and country information: Reasons [13(a)-(g)].

12    The primary judge observed that, despite the appellant agreeing his allegation was to the effect that the Authority had failed to consider matters associated with his visa, the appellant chose to raise issues associated with the merits of his visa application rather than matters which might disclose jurisdictional error on the part of the Authority.

13    The primary judge also noted that while the Minister conceded that the Authority did not apply s 473DD correctly in the manner described in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494, the appellant failed to embrace those submissions.

14    The following matters were included in the appellant’s written submissions to the Authority and were described as being new information for the purposes of the Act:

(a)    That the appellant: “was reading a human rights degree at the University of Colombo at the time of his departure to Australia”: Authority’s reasons [6].

(b)    “The applicant is perceived to belong to the social group the LTTE and is suspected of a crime, he has been arrested and detained and he has been persecuted by way of sexual abuse by the SLA. His brother, who was arrested alongside him has successfully sought asylum in Canada. He is a [sic] seen as a traitor as he has sought asylum in Australia”: Authority’s reasons [7].

(c)    “The latest UNHCR guidelines specifically lists [sic] media personalities and Ex policemen as ‘at risk profiles’ (the applicant belongs to both groups) that have to be given careful consideration to, when assessing their asylum claims”: Authority’s reasons [8].

15    The primary judge again noted that while the Minister, in discharging the Minister’s obligations as a model litigant, acknowledged that the Authority’s treatment of these matters was potentially demonstrative of jurisdictional error, the appellant again failed to embrace those submissions.

16    In any event, the primary judge considered whether in circumstances where the Authority has not applied the criteria in s 473DD of the Act correctly, the issue was whether that failure was demonstrative of jurisdictional error.

17    His Honour considered that there was no reason to think that the new information related to the appellant and expressed the view that it had been included in the appellant’s written submissions to the Authority as a result of the negligence of the appellant’s representatives.

18    The primary judge considered the question as to whether the decision to exclude the new information was material to the Authority’s decision, causing it to be affected by jurisdictional error. Given the information in question seemed unlikely to relate to the appellant, the primary judge found that exclusion of the information was immaterial to the Authority’s decision such that there was no jurisdictional error.

19    The primary judge also found it was not unreasonable or material to the outcome that the Authority did not pursue an anomalous fact under s 473DC, with both the appellant or other sources.

The appeal

20    The appellant’s filed notice of appeal is substantially the same as the ground pursued before the primary judge, save that it now alleges the decision of the primary judge is affected by jurisdictional error:

(a)    By taking into account irrelevant considerations.

(b)    By not taking into account relevant considerations.

(c)    By not taking into account the relevant country information.

(d)    By agreeing with the IAA that it had asked a reasonable number of questions in order to ascertain the applicant's credibility and making a fair decision.

(e)    By not finding the applicant met the provisions of complementary protection.

21    The appellant was self-represented. At the hearing the appellant made no submissions directed to the ground of appeal or the particulars despite being given the opportunity to do so.

22    As was the case before the FCFCoA, the appellant raised issues associated with the merits of his visa application rather than matters which might disclose jurisdictional error on the part of the primary judge.

23    Insofar as the primary judge found the information was likely in relation to a different applicant, the Minister referred to Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46. That was a case involving an alleged fraud in which a registered migration agent made submissions to the Authority which contained personal information relevant to a different person. The information the subject of that matter was in precisely the same terms as that in this matter. The primary judge was correct in his finding that the information was unlikely to refer to the appellant.

24    The Minister submitted that the primary judge had regard to the new information considered by the Authority and accepted that the Authority had not applied itself correctly to the criteria of s 473DD as explained by the High Court in AUS17. I accept that submission.

25    The Minister also submitted that the primary judge, whilst acknowledging that the Authority failed to apply the criteria in s 473DD, was correct to find that any error in its application was not material to the Authority’s decision.

26    I accept that submission. The primary judge had good reason to think that the new information did not refer to the appellant such that the Authority’s error was not material and so, not jurisdictional.

CONCLUSION

27    It is for these reasons that the appeal must be dismissed.

28    There is no reason why the appellant should not pay costs for the first respondent.

Associate:

Dated:    27 March 2025