BRh18 v Minister for Immigration

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

The court was required to determine whether the loss or destruction of the audio recording constituted jurisdictional error. Specifically, the court had to consider the applicability of section 473CB of the Migration Act 1958, which mandates the Secretary to provide certain review materials to the IAA. Key issues included the onus on the applicant to establish that the recording was in the Secretary's possession or control at the time of referral to the IAA, and whether the loss or destruction of the recording was material to the decision-making process. The court also considered the utility of any potential remitter in the circumstances.

Egan J applied principles established in *CPA16 v Minister for Immigration & Anor* [2019] FCAFC 40, which clarified the operation of section 473CB(1). The court affirmed that section 473CB(1) is mandatory and that a failure to provide review material constitutes jurisdictional error only if the omitted material could realistically have resulted in a different decision, thereby depriving the applicant of a possibility of a successful outcome. Crucially, the onus rests on the applicant for judicial review to demonstrate the materiality of the missing document or information. In this case, the court found that the applicant had not discharged this onus, as they failed to establish that the audio recording was in the Secretary's possession or control at the relevant time.

Consequently, the applications were dismissed. The court ordered that the name of the First Respondent be amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs', and the Second Further Amended Application for review be dismissed. The applicant was ordered to pay the First Respondent's costs.