BRG18 v Minister for Immigration

The applicant sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning an application for Safe Haven Enterprise Visas. The central dispute revolved around the alleged loss or destruction of an audio recording of the applicant's protection visa interview, which the applicant contended was relevant to the IAA's consideration of her claims. The matter came before Egan J of the Federal Court of Australia.

The legal issues before the Court were whether the Secretary had possession or control of the audio recording at the time the matter was referred to the IAA, and whether the loss or destruction of this recording was material to the IAA's decision. The Court was required to determine if the failure to provide the recording to the IAA constituted jurisdictional error, and if so, whether any remitter of the matter would be of practical utility given 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* (Cth). The Court noted that the applicant bore the onus of proving that the missing recording was material, meaning it could realistically have resulted in a different decision by the IAA. The Court found that the applicant had not discharged this onus, as the audio recording was not provided by the applicant to the delegate before the decision was made, and therefore did not fall within s 473CB(1)(b). Furthermore, the evidence did not establish that the recording was in the Secretary's possession or control at the time of referral, as required by s 473CB(1)(c). The Court adopted the reasoning that speculation as to how the missing material might have affected the decision was insufficient.

Consequently, the Court dismissed the applicant's application for review. The orders included an amendment to the name of the First Respondent and directed the applicant to pay the First Respondent's costs.