CXB20 v Minister for Home Affairs

The case CXB20 v Minister for Home Affairs involved the appellants, a mother and her daughter, both of Tamil ethnicity and Hindu religion from the Northern Province of Sri Lanka. They sought judicial review of a decision by the Federal Circuit Court to dismiss their application for review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of protection visas. The appellants arrived in Australia in 2012 and claimed they had fled Sri Lanka due to threats from the Criminal Investigation Department, Sri Lankan Police, and the Sri Lankan Army. The mother claimed to have been raped by the army or police, and that her daughter had been sexually assaulted by the army or police. They sought protection visas on the basis of a well-founded fear of persecution if they were to return to Sri Lanka.

The legal issues before the court were whether the IAA fell into jurisdictional error when determining if exceptional circumstances existed under s 473DD(a) of the Migration Act 1958 (Cth) to consider the new information provided by the mother regarding her daughter’s alleged sexual assault. The court was also required to decide whether the IAA misapplied s 5J of the Migration Act by failing to consider a clearly advanced argument. The court found that the IAA erred by not considering the new information provided by the mother against the criteria in s 473DD(b)(i) and s 473DD(b)(ii) before assessing whether exceptional circumstances existed under s 473DD(a). The court held that the IAA should have considered the new information against the criteria in s 473DD(b) before determining if exceptional circumstances existed under s 473DD(a).

The appeal was allowed, the orders of the Federal Circuit Court were set aside, and a writ of certiorari issued quashing the IAA's decision. A writ of mandamus was also issued requiring the IAA to decide the referral according to law. The Minister for Home Affairs was ordered to pay the appellants' costs of the appeal and the proceeding before the Federal Circuit Court.