FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIH19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 86
ORDERS
ADG 124 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIH19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE…
Continue reading BIH19 v Minister for Immigration and Multicultural Affairs
Sign in free to access the full text
- AGLC
- BIH19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 86
- Case
- [2025] FedCFamC2G 86
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the IAA made any jurisdictional errors in its assessment of the applicant's visa application. The primary issue was whether the IAA correctly applied the provisions of the Migration Act, particularly section 36(2A), in determining that the applicant would not suffer significant harm if returned to Sri Lanka. Other issues included whether the IAA adequately considered the likelihood of harm to the applicant and the relevance of new information provided during the review process. The court also had to consider whether the IAA was required to take into account the applicant's welfare and safety, and if it failed to do so, whether this constituted a jurisdictional error.
The Federal Court found that the IAA did not make any jurisdictional errors in its decision. The court noted that the IAA was aware of the relevant legal tests and correctly applied the definition of significant harm as outlined in section 36(2A) of the Migration Act. The IAA's reasons demonstrated an understanding of the criteria for assessing the risk of significant harm and correctly applied the country information and earlier factual findings in its decision-making process. The court rejected the applicant's argument that the IAA failed to consider the applicant's relationship to the receiving country or new information provided during the review process, finding that the IAA had adequately addressed these issues in its decision. Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In reply to the Minister’s submissions, the applicant stressed that the data breach would pose a risk to his life and safety if he returned to Sri Lanka.CONSIDERATION As outlined above, the application for judicial review contains four grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). Ground one Ground one contends that the IAA failed to properly apply s 36(2A) in determining that there was no risk that the applicant would suffer significant harm in Sri Lanka. Section 36(2A) relevantly provides:(2A) A non-citizen will suffer significant harm if:(a) the non-citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non-citizen; or(c) the non-citizen will be subjected to torture; or(d) the non-citizen will be subjected to cruel or inhumane treatment or punishment; or(e) the non-citizen will be subjected to degrading treatment or punishment. In written submissions, the Minister submitted that there was no error in the IAA’s assessment of the complementary protection criterion. The Minister submitted that the IAA correctly summarised the relevant tests and was correct to find that any stigma or contact with authorities that the applicant might face upon return to Sri Lanka, including for reason of being a returned asylum seeker or due to having resided in Tamil Nadu, would not expose the applicant to a real risk of significant harm. The Minister submitted that the IAA clearly considered whether the applicant would suffer significant harm as defined in s 36(2A), and that there is nothing in the IAA decision to demonstrate misapplication of that provision. Further, the Minister submitted that there was no error in the IAA referring to previous factual findings made for the purpose of s 36(2)(a) when applying those findings to its assessment of the criteria in s 36(2A), citing DQU16 v Minister for Home Affairs (2021) 388 ALR 363 at [27] and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]. In oral submissions at the hearing, counsel for the Minister, Mr Chan, submitted that not only did the IAA correctly apply the phrase “significant harm” as defined in s 36(2A) of the Act, the IAA expressly used the precise language of the Act at [26] of its reasons. Based on country information, the IAA reasoned it was not satisfied that someone with the applicant’s profile would suffer significant harm. The Minister submitted that the IAA properly referred to country information and to its earlier factual findings made under the refugee criteria, and that it was correct to do so, in applying the phrase “significant harm”. The Court accepts the Minister’s submissions with respect to ground one. It is patently clear that the IAA was aware of the relevant tests. It accurately summarised the ambit of significant harm contained within s 36(2A) and its reasons make it clear that it was aware that it was required to consider whether there was a real risk that the applicant would suffer significant harm as a result of return to Sri Lanka. The IAA’s observation that the “real risk” test in s 36(2)(aa) involves the same standard as the “real chance” test in s 5J was entirely orthodox and supported by applicable authority (Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505).