CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

CDJ19 sought leave to appeal from a decision of the Federal Circuit and Family Court of Australia, which had dismissed his application for review of a decision of the Immigration Assessment Authority. The Authority had determined that CDJ19 did not meet the criteria for a Subclass 365 Humanitarian Visa on the basis that he did not face a risk of harm in connection with his ethnicity or because he departed Sri Lanka illegally. CDJ19 argued that the Authority failed to properly consider his claims and evidence, particularly his assertion that he had been an ex-member of the Liberation Tigers of Tamil Eelam and would be arrested and tortured if he returned to Sri Lanka. The court was required to determine whether there was a reasonably arguable case that the primary judge’s decision was affected by an appealable error, and whether leave to appeal was necessary to remedy a substantial injustice.

The court found that leave to appeal should be granted because there was sufficient doubt as to the correctness of the primary judge’s decision regarding the Authority’s consideration of a new document. The Authority had concluded that the document did not satisfy the requirements of s 473DD of the Migration Act 1958 (Cth), but it was not clear whether this conclusion was correct or whether it was material to the overall decision. The court also found that the other grounds of appeal proposed by CDJ19 were without merit. The Minister accepted that substantial injustice would flow to CDJ9 if the judgment of the primary judge was assumed to be wrong and leave was refused, as the applicant would be deprived of a further opportunity to pursue merits review of the delegate’s decision before the Authority.

The court granted leave to appeal on the limited ground of whether the Authority erred in concluding that the requirements of s 473DD of the Migration Act 1958 (Cth) were not satisfied in relation to the new document, and if so, whether that error is material. The appeal was dismissed, and CDJ19 was ordered to pay the first respondent’s costs as agreed or taxed.