BTT19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 701

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BTT19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 701

File number(s):

ADG 159 of 2019

Judgment of:

JUDGE LUCEV

Date of judgment:

6 August 2024

Catchwords:

MIGRATION – Judicial review application – citizen of Sri Lanka – Tamil ethnicity – claims of harm on the basis of political allegiances and activities – single unparticularised ground of review – whether any jurisdictional error alleged – not merits review – whether material jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 5H, 36, 46A, 473CA, 474CB, 473DD, 473FB, 474, 476

Cases cited:

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144

FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

29 July 2024

Date of hearing:

29 July 2024

Place:

Perth (by video link to Adelaide)

Applicant:

In person by telephone with the assistance of an interpreter

Counsel for the First Respondent:

Ms G Ellis

Solicitor for the Respondents:

Sparke Helmore Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 159 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BTT19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	6 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

2.The originating application filed on 1 May 2019 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. By application filed pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”), the applicant, BTT19, seeks judicial review (“Judicial Review Application”) of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) which affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant BTT19 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”). The Authority Decision appears in the Court Book (“CB”) at CB 115-134.

   BACKGROUND

2. The general background to this matter is as follows:

   (a)BTT19 is a citizen of Sri Lanka who arrived at Cocos Island on 8 December 2012 as an unauthorised maritime arrival: CB 43;

   (b)on 23 December 2015 the Minister’s Department advised BTT19 that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the bar in s 46A(1) of the Migration Act to allow him to lodge a valid application for a SHE Visa: CB 14-19;

   (c)on 27 April 2017 BTT19 applied for a SHE Visa: CB 20-72;

   (d)on 13 December 2018 BTT19 attended an interview with an officer of the Delegate (“Delegate’s Interview”): CB 75-76;

   (e)on 21 February 2019 the Delegate’s Decision was to refuse to grant BTT19 a SHE Visa as the Delegate was not satisfied that BTT19 was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act: CB 80-89;

   (f)on 26 February 2019 the matter was referred to the Authority under s 473CA of the Migration Act: CB 95-96;

   (g)on 19 March 2019 BTT19 provided further submissions and statements to the Authority: CB 102-111; and

   (h)on 8 April 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 115-130.

   Authority Decision

3. In the Authority Decision the Authority:

   (a)had regard to the information referred to it by the Secretary of the Department under s 473CB of the Migration Act: CB 116 at [2];

   (b)also had regard to the submission provided by BTT19 on 19 March 2019 to the extent that it disputed the Delegate’s Decision, as well as the statement dated 24 April 2017 as it was before the Delegate: CB 116 at [3] and [5]; and

   (c)did not accept the new country information contained within the submission as it did not comply with the Authority’s Practice Direction, in accordance with s 473FB(5) of the Migration Act. In BTT19’s statement dated 13 March 2019 BTT19 raised new claims which the Authority did not have regard to because they did not meet the requirements of s 473DD of the Migration Act.

4. In relation to the refugee criterion the Authority:

   (a)accepted that BTT19 was a Sri Lankan national of Tamil ethnicity: CB 119 at [14];

   (b)expressed concerns regarding the reliability of BTT19’s evidence and formed the view that he had exaggerated, embellished, and fabricated some of his claimed experiences: CB 120 at [15];

   (c)accepted that BTT19 had some low-level involvement with the Tamil National Alliance (“TNA”), but found BTT19’s knowledge of Tamil politics and the TNA to be basic and was not satisfied that he spoke publicly in support of the TNA and against other parties or that he was a team leader: CB 120 at [16]-[17];

   (d)did not accept that BTT19 had any particular personal profile as a campaigner and found that he had exaggerated his profile and level of engagement: CB 120 at [17];

   (e)accepted that in July 2012 BTT19 was approached by Tamil Makkal Viduthalai Pulikal (“TMVP”) members who tore down the posters he was putting up for the TNA, asked him to join the TMVP, which he refused to do, and that the TMVP approached BTT19 again three days later and confronted him and hit him on the back of the head with a gun butt from which he suffered a head wound: CB 120 at [18];

   (f)notwithstanding the discrepancies in BTT19’s narrative, also accepted that a van and two motorbikes had approached BTT19 and his friends at a cricket ground where shots were fired, after which BTT19 ran home, and men subsequently entered his house asking for him, and his father told him not to return home but to stay at the house of a TNA member of Parliament (“MP”), and that BTT19 did this: CB 121 at [19]-[20];

   (g)did not accept BTT19’s claim made at the Delegate’s Interview that on one occasion, he attacked the brother of a high-ranking TMVP member and broke the TVMP member’s arm or that this TMVP member later came to BTT19’s father’s home to kill BTT19: CB 121 at [22]-[23], and found aspects of these claims to be completely implausible and found it significant that an entire, important claim would be omitted from the claims made by BTT19 until the Delegate’s Interview: CB 121-122 at [23] and [25];

   (h)accepted that the day after BTT19 went to the MP’s house, Eelam Peoples Democratic Party (“EPDP”) members went to BTT19’s home searching for him, mistreated and threatened his father, and that his father went to make a complaint to the police about this assault but decided against it when he saw one of the assailants at the police station: CB 122 at [26];

   (i)did not accept BTT19’s claim that his neighbours were linked to or were relatives or informers of the EPDP or TMVP or his claim about an incident when BTT19 visited his father and said that three motorbikes pursued him, which prompted him to live with his aunt for three months, nor did it accept that he was chased by a TMVP man in October 2012: CB 122 at [26]-[29];

   (j)found that many of BTT19’s claims made for the first time at the Delegate’s Interview were not credible, including that TMVP members had visited his home twice since he departed Sri Lanka, that TMVP members asked his parents questions about his whereabouts when they attend the market, or that on one occasion in 2012 there was an attempt to abduct BTT19 in a white van: CB 123 at [30];

   (k)based on country information and the passage of time, found that the risk of harm to BTT19 due to his former low-level campaign activities for the TNA was speculative and was not satisfied that he faced a real chance of harm because of those activities now or in the reasonably foreseeable future: CB 123-124 at [31]-[33];

   (l)was not convinced that BTT19 had a real and ongoing interest in Tamil politics, but accepted that it was possible that he may involve himself in political activities in the future, and was not satisfied that BTT19 faced a real chance of serious harm on that basis: CB 123 at [34];

   (m)even though the claim was not made in writing, considered the claim BTT19 had raised at the Delegate’s Interview that people of Sinhalese ethnicity suspected Tamils of involvement with the Liberation Tigers of Tamil Eelam (“LTTE”): CB 124 at [35], and accepted that the Sri Lankan authorities previously viewed Tamils, particularly those from LTTE areas, as LTTE supporters: CB 124 at [36];

   (n)in relation to BTT19’s claim that the former president, Mahinda Rajapaksa, may return to power, found that this was speculative and was not satisfied that there was a real chance of harm to BTT19 personally or to Tamils generally because of any parliamentary instability: CB 126 at [39];

   (o)did not accept that TMVP or EPDP members would attack BTT19’s family if they found he was in Australia: CB 126 at [40];

   (p)found that BTT19 did not have a profile which would attract the attention of the Sri Lankan authorities and it was therefore unlikely that he would be monitored on return to Sri Lanka, but even if he was monitored, did not consider that to amount to serious harm: CB 126 at [41];

   (q)was not satisfied that BTT19 faced a real chance of harm in the reasonably foreseeable future on the basis of his ethnicity, age, as a person from the East of Sri Lanka, imputed political opinion or any combination of these factors: CB 126 at [41];

   (r)accepted that BTT19 departed Sri Lanka illegally and would be identified on return as a failed asylum seeker: CB 126 at [42], and that he would be investigated at the airport, have his identity checked, possibly be charged with an offence for illegal departure, briefly detained, fined and may be subject to societal discrimination, but was not satisfied that any of these amounted to serious harm: CB 126 at [43]-[52];

   (s)found that any processing, investigation, prosecution and punishment would be under a law of general application and did not amount to persecution: CB 128 at [51], and was therefore not satisfied that BTT19 faced a real chance of serious harm in the reasonably foreseeable future based on being a Tamil failed asylum seeker: CB 128 at [52]; and

   (t)after a cumulative assessment of BTT19’s characteristics and claims, was not satisfied that there was a real chance of BTT19 facing persecution in the reasonably foreseeable future and concluded that he did not meet the definition of refugee in s 5H of the Migration Act and did not meet s 36(2)(a) of the Migration Act: CB 128 at [53]-[54].

5. In relation to the complementary protection criterion the Authority was not satisfied that any monitoring, societal discrimination, returnee processing, fine or detention would constitute significant harm, and otherwise relied on its anterior findings to conclude that there was not a real risk that BTT19 would face significant harm: CB 129 at [57]-[60]. Accordingly, it concluded that he did not meet s 36(2)(aa) of the Migration Act: CB 130 at [61].

   JUDICIAL REVIEW APPLICATION

   Sole ground of Judicial Review Application

6. The sole ground of the Judicial Review Application is as follows:

   The Immigration Assessment Authority made a jurisdictional error in my case

   Litigation history

7. It is appropriate to set out the litigation history of the matter, which is as follows:

   (a)the Judicial Review Application and a supporting affidavit were filed on 1 May 2019 in the Adelaide Registry of the Court (then the Federal Circuit Court);

   (b)on 14 May 2019 the Minister filed a response seeking that the Judicial Review Application be dismissed on the basis that it did not establish any jurisdictional error in the Authority Decision;

   (c)on 21 June 2019 a Registrar of the Court made consent orders (“Registrar’s June 2019 Orders”) that included orders to the following effect:

   (i)that BTT19 have leave to file and serve any amended Judicial Review Application and such further material that he may rely upon at the hearing by 23 August 2019;

   (ii)the Judicial Review Application be listed for a final hearing on a date to be advised; and

   (iii)the matter be listed for a directions hearing on 12 June 2020 at 9:30am;

   (d)BTT19 did not file any documents pursuant to the Registrar’s June 2019 Orders;

   (e)on 6 January 2020 the Adelaide Registry of the Court advised the parties that the 12 June 2020 directions hearing had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment;

   (f)nothing further occurred with the matter for more than three years until in February 2023 the matter was docketed to the presently presiding Judge, and a directions hearing was listed for 30 March 2023;

   (g)at the 30 March 2023 directions hearing the Court made orders (“Court’s March 2023 Orders”) setting aside the Registrar’s June 2019 Orders, and making further orders including an order that BTT19 file and serve any amended Judicial Review Application, further affidavits, and an outline of submissions by 18 September 2023 and listing the matter for hearing on 17 November 2023;

   (h)on 12 September 2023 the parties were advised that due to reasons associated with judicial hearing workloads and case management that the final hearing of the matter had been re-listed to 29 July 2024;

   (i)the final hearing of the matter proceeded on 29 July 2024, and at the final hearing the Court:

   (i)noted that BTT19 had not filed any materials pursuant to the Court’s March 2023 Orders;

   (ii)reiterated what had been said at the 30 March 2023 directions hearing that BTT19 needed to establish material jurisdictional error in the Authority Decision, and the nature of jurisdictional error, and that the Court was not re-hearing the merits of the SHE Visa application; and

   (iii)heard oral submissions from both BTT19 and the Minister. Albeit that BTT19 did not file any materials he was permitted to make oral submissions, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J; see too FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams.

   Submissions

   BTT19’s oral submissions

8. In BTT19’s oral submissions BTT19 said that:

   (a)the Authority had “not looked at it properly”;

   (b)he wanted the Authority “to have a look again”; and

   (c)he had submitted all relevant documents to the Authority.

   Minister’s submissions

9. The Minister submitted that:

   (a)no jurisdictional error was asserted and none was sufficiently particularised to be the subject of a meaningful response, and that that was a sufficient basis for the single ground of review to be dismissed; and

   (b)the Authority’s findings, including its new information findings and substantive findings, were rational and reasonable and in accordance with established legal principle, and that no error had been demonstrated or was otherwise apparent.

   Consideration

   Material jurisdictional error

10. For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:

    15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

    16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

    Not merits review

1. The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review…must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

   No jurisdictional error alleged or particularised in single ground of review

2. The Court notes that BTT19 had three formal opportunities prior to the final hearing to file material setting out an alleged jurisdictional error in the Authority Decision. The first opportunity which was not taken was upon the filing the Judicial Review Application in May 2019. The second opportunity was upon the making of the Registrar’s June 2019 Orders, which were made by consent, which permitted BTT19 to file an amended Judicial Review Application and further material by 18 September 2019, but he did not do so. The third opportunity was upon the making of the Court’s March 2023 Orders which allowed BTT19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions by 30 August 2023. Also, at the 30 March 2023 directions hearing (conducted with the assistance of an interpreter) the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to BTT19, and BTT19 was told that the Court did not engage in merits review of the Authority Decision. BTT19 did not file any further documents as a result of the Court’s March 2023 Orders.

3. At the final hearing (also conducted with the assistance of an interpreter) the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were reiterated to BTT19, but BTT19 oral submissions (as to which see [8] above) did not assert any alleged jurisdictional error. In the circumstances, the Court is satisfied that BTT19 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: DQQ17 at [8]-[9] per Colvin J; see also BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J.

4. Having given both explanation and opportunity to BTT19 to explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in the single ground of review, and the failure to particularise the grounds of review, is sufficient reason to warrant this Court dismissing that ground: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] per McKerracher J, citing WZAVW (amongst other cases); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.

   No jurisdictional error otherwise

5. As to the new information findings, the Authority declined to consider BTT19’s new claims arising from his two statements: CB 116-118 at [5]-[10]. The Authority expressly considered the credibility of the new claims and whether they could have been provided to the Delegate earlier. There is therefore implicit consideration of both limbs in s 473DD(b) of the Migration Act, as:

   (a)in relation to the lack of credibility of the claims, the Authority found that they variously “lack[ed] credibility”, that it had a “great deal of trouble believing” them, that the claims were “not corroborated” by other contemporaneous evidence, that it was “highly suspicious about the timing of the disclosure” of the new claims, noting especially that BTT19’s claims “continued to evolve over the course of the protection process”: CB 117-118 at [9]-[10]; and

   (b)the findings in (a) above then informed the Authority’s conclusion that there were no exceptional circumstances to justify considering the new information: CB 118 at [10].

6. The Authority’s reasoning in relation to new information as set out above was coherent, logical and substantially in compliance with the principles concerning the application of s 473DD of the Migration Act as set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196; see also APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J.

7. In relation to its substantive findings the Authority found that BTT19 did not meet s 36(2)(a) or (aa) of the Migration Act because his claims were not credible, plausible or supported by evidence. In making findings about BTT19’s claims the Court is satisfied that the Authority applied the correct provisions and statutory language and had regard to relevant country information reports and BTT19’s evidence. Overall, the Authority’s conclusions were rational, reasonable and open to it for the reasons it gave, and fell within the remit of a decision that another reasonable decision-maker might have made based on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130], [131] and [135] per Crennan and Bell JJ.

8. In this case BTT19 did not identify or particularise any jurisdictional error in the Authority decision, and it appears that what he seeks to have the Court do is to conduct an impermissible merits review of the Authority Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

9. The Court is cognisant that BTT19 is a self-represented litigant, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. It is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.

   CONCLUSION AND ORDERS

10. The Court has concluded that the Judicial Review Application does not establish any material jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly. There will also be an order that the name of the Minister be amended to read “Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts”.

11. The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       6 August 2024