AEK18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2025] FedCFamC2G 576

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AEK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 576

File number(s): MLG 80 of 2018
Judgment of: JUDGE J YOUNG
Date of judgment: 23 April 2025
Catchwords: MIGRATION – Application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent that the applicant is not a person in respect of whom Australia has protection obligations – whether a finding made by the Authority was illogical or irrational – found the country information relied upon by the Authority did not support the Authority’s reasoning – consideration of the principles for relying on an unwarranted assumption in establishing jurisdictional error – found the Authority made a finding that was illogical or irrational and not founded on probative evidence – consideration of materiality – found the error to be material – jurisdictional error established – application allowed.
Legislation: Migration Act 1958 (Cth) ss 36(2), 65, 473DA, 473DB(1), 473DC, 473GA, 473GB, 474, 476, Pt 7AA, div 3, 473CB, 473DD(b).
Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573

BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292

Craig v South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law
Number of paragraphs: 81
Date of hearing: 19 February 2025
Place: Melbourne
Counsel for the Applicant: Ms McInnes
Solicitor for the Applicant: Asylum Seeker Resource Centre
Counsel for the First Respondent: Ms Cameron
Solicitor for the First Respondent: Australian Government Solicitor
Solicitor for the Second Respondent: Submitting appearance save as to costs

ORDERS

MLG 80 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AEK18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

23 APRIL 2025

THE COURT ORDERS THAT:

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

2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.

3.A writ of certiorari be issued directed to the Immigration Assessment Authority quashing the decision dated 22 December 2017.

4.A writ of mandamus be issued directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicant’s Application according to law.

5.The First Respondent pay the Applicant’s costs in an amount to…

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AEK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 576
Case
[2025] FedCFamC2G 576
Decision Date

CaseChat Overview and Summary

The case of AEK18 v Minister for Immigration, Citizenship and Multicultural Affairs involved the applicant seeking judicial review of a decision made by the Immigration Assessment Authority (Authority) affirming the decision of the Immigration Delegate (Delegate) not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa. The applicant, who had fled Sri Lanka, argued that the Authority's decision was flawed and sought to have it quashed. The primary legal issue before the court was whether the Authority made a decision that was illogical or irrational and therefore constituted a jurisdictional error.

The court found that the Authority did indeed make a finding that was illogical or irrational and not founded on probative evidence. The Authority had dismissed new information provided by the applicant, including an article from Ceylon News, as general country information rather than credible personal information. The court held that the Authority's reasoning was flawed because the country information did not support its conclusions. The court applied principles for establishing jurisdictional error, considering whether the error was material. Given that the Authority's flawed finding undermined the overall decision, the court concluded that the error was indeed material and constituted a jurisdictional error.

The court allowed the application for judicial review, quashed the Authority's decision, and remitted the matter back to the Authority for reconsideration in light of the court's findings. This decision underscores the importance of ensuring that decisions affecting an individual's protection status are based on logical, rational, and evidence-supported findings. The court's ruling highlights the need for decision-makers to carefully consider all relevant information and avoid making unwarranted assumptions that could lead to unjust outcomes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGE J
On 22 December 2017, the Authority affirmed the Delegate’s Decision not to grant the applicant the Visa.AUTHORITY DECISION The Authority issued its statement of decision and reasons on 22 December 2017 (Authority Decision).Information considered by the Authority At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). At paragraph [4] of the Authority Decision, the Authority stated that it had received the IAA Submission and considered it to largely contain argument rather than new information and as such had regard to it. At paragraph [5], the Authority identified that the IAA Submission contained a new claim that if the applicant returns to Sri Lanka, he will not be able to work and make a living due to persisting harassment from the Sri Lankan authorities as a result of his profile (New Claim). The Authority considered the applicant’s Visa application and Visa Interview which contained evidence of the applicant’s steady employment and noted that the Delegate prompted the applicant on a number of occasions as to whether he wished to provide any further information. As a result, the Authority found that the applicant had the opportunity to make this claim prior to the Delegate’s Decision being made, and that no explanation had been given for his failure to do so. Accordingly, the Authority was not satisfied that the New Claim was credible personal information and found that ss 473DD(b)(i) and (ii) were not satisfied and that there were no exceptional circumstances which would permit consideration of the new information. At paragraph [6], the Authority considered the article from Ceylon News dated 5 October 2016 contained in the IAA Submission which was not previously before the Delegate. The Authority did not accept that the article could not have been provided to the Delegate given it was publicly available and pre-dated the Delegate’s Decision. The Authority found that the article was general country information as opposed to personal credible information and accordingly, found that ss 473DD(b)(i) and (ii) were not satisfied and that there were no exceptional circumstances which would permit consideration of the new informationConsideration of claims At paragraph [7] of the Authority Decision, the Authority summarised the applicant’s claims for protection. At paragraphs [9] – [10] of the Authority Decision, the Authority considered the applicant’s claims regarding the shelling in 2008. The Authority noted that the applicant provided inconsistent versions of these events when comparing his Visa application and the Visa Interview. The Authority was not prepared to accept that the applicant had fought for the LTTE, instead finding that this claim had been made to bolster his claims for protection. The Authority found that the account given in the IAA Submission, where the applicant claimed to have been injured in the shelling of a civilian area, to be more credible.

Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

At paragraph [6], the Authority considered the article from Ceylon News dated 5 October 2016 contained in the IAA Submission which was not previously before the Delegate. The Authority did not accept that the article could not have been provided to the Delegate given it was publicly available and pre-dated the Delegate’s Decision. The Authority found that the article was general country information as opposed to personal credible information and accordingly, found that ss 473DD(b)(i) and (ii) were not satisfied and that there were no exceptional circumstances which would permit consideration of the new informationConsideration of claims At paragraph [7] of the Authority Decision, the Authority summarised the applicant’s claims for protection. At paragraphs [9] – [10] of the Authority Decision, the Authority considered the applicant’s claims regarding the shelling in 2008. The Authority noted that the applicant provided inconsistent versions of these events when comparing his Visa application and the Visa Interview. The Authority was not prepared to accept that the applicant had fought for the LTTE, instead finding that this claim had been made to bolster his claims for protection. The Authority found that the account given in the IAA Submission, where the applicant claimed to have been injured in the shelling of a civilian area, to be more credible. At paragraphs [12] – [16] of the Authority Decision, the Authority considered and accepted the applicant’s claims regarding his arrest, interrogation and detainment as supported by the Magistrates’ Court documents the applicant provided. The Authority further accepted that the applicant was released in 2010 after approximately one year, however, did not accept that this release was conditional on reporting conditions. At paragraphs [17] – [19] of the Authority Decision, the Authority considered the applicant’s claims regarding his political activity and support of the TNA. The Authority noted that at the Visa Interview the applicant did not appear to have a detailed knowledge of the TNA. The Authority also noted that the letter from the TNA Member of Parliament stated that the applicant faced threats from supporters of other parties which did not form part of the applicant’s claim. As a result, on this inconsistency the Authority placed little weight on the letter. The Authority was prepared to accept that the applicant had supported the TNA and the TNA candidate and that he would have come to the attention of the army in doing so and was required to register and report to the army camp from time to time. At paragraph [20] of the Authority Decision, the Authority did not accept that the applicant remained the subject of formal monitoring in 2011 because he was able to obtain a passport. At paragraphs [21] – [22] of the Authority Decision, the Authority accepted the applicant’s account of his departure from Sri Lanka on 27 September 2012. The Authority further accepted that the army and the CID would have had an interest in a sudden disappearance from the applicant and accepted that the applicant’s illegal departure would have urged the authorities to come to his home to look for him on a number of occasions. However, the Authority was not prepared to accept that this attendance on his home was as recent as 2017, given their awareness of the applicant being out of the country since 2012.