BNH18 v Minister for Home Affairs

The applicants, BNH18, BNI18, and BNJ18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the Minister for Home Affairs' refusal to grant them a Safe Haven Enterprise visa. The first applicant was the primary visa applicant, with the second and third applicants being his son and wife, respectively. The application was brought under section 476 of the Migration Act 1958 (Cth), requiring the applicants to demonstrate jurisdictional error by the IAA.

The central legal issues before the Federal Circuit Court were whether the IAA had committed jurisdictional error by failing to take into account relevant considerations, and whether the IAA had based its decision on a non-existent fact, specifically concerning the statelessness of one of the applicants. The applicants argued that the IAA failed to discern a Convention nexus and future harm from LTTE connections, and that it incorrectly determined the receiving country for the third applicant, who they contended was stateless, a fact later affirmed by subsequent case law.

The Court found that the IAA had thoroughly considered the applicants' claims regarding imputed LTTE connections and past events, and that its findings were open to it on the evidence. The Court rejected the argument that the IAA had failed to consider relevant considerations or acted unreasonably, noting that the weight given to country information was a matter for the IAA. Regarding the statelessness claim, the Minister conceded that the IAA had erred in its determination of the third applicant's nationality, contrary to the principles established in *FER17 v Minister for Immigration, Citizenship and Multicultural Affairs* [2019] FCAFC 106. However, the Minister argued that this error was not material.

The Court agreed with the Minister that the error was not material. Despite the IAA's error in identifying the third applicant's nationality, the Court found that the IAA had already considered and rejected the factual basis of her claims for protection in India due to inconsistencies in her and the first applicant's evidence. Therefore, even if India had been correctly identified as the receiving country, the outcome of the assessment would not have changed. Consequently, the applicants had not discharged the onus of proving that the IAA's error deprived them of the possibility of a successful outcome. The application was dismissed.