BQU18 v Minister for Immigration

This case concerned applications for Safe Haven Enterprise Visas. The central dispute revolved around the alleged loss or destruction of an audio file recording of the first applicant’s sister’s protection visa interview, which the applicants claimed was relevant to the Immigration Assessment Authority's (IAA) consideration of their claims. The matter was heard by Egan J in the Federal Court of Australia.

The legal issues before the court were whether the applicants had discharged the onus of proving that the loss or destruction of the audio recording was material to the IAA's decision, and whether the applicants had discharged the onus of establishing that the recording was in the possession or control of the Secretary at the time the matter was referred to the IAA. The court also considered whether a statutory implication arose that the failure to provide the recording to the IAA constituted jurisdictional error, and the utility of any remitter in the circumstances.

Egan J applied the principles established in *CPA16 v Minister for Immigration & Anor* [2019] FCAFC 40 regarding the materiality of missing review material under s 473CB of the *Migration Act 1958*. The court reiterated that a contravention of s 473CB only results in jurisdictional error if the error is material, meaning it deprives the applicant of the possibility of a successful outcome. The assessment of whether a decision could realistically have been different requires evidence of the content of the missing material, and speculation is insufficient. Crucially, the onus rests on the applicant to demonstrate that the missing document or information is material. In this instance, the court found that the applicants had not discharged their onus of establishing that the Secretary possessed or controlled the audio recording at the time of referral to the IAA.

Consequently, the court ordered that the name of the First Respondent be amended. The Second Further Amended Application for review was dismissed, and the Applicants were ordered to pay the First Respondent’s costs.