Epm17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, a citizen of Sri Lanka, sought judicial review of a decision by the Immigration Assessment Authority (Authority) which affirmed a delegate's refusal to grant him a protection visa. The applicant arrived in Australia as an unauthorised maritime arrival in 2012 and subsequently lodged a Safe Haven Enterprise Visa application, detailing various claims of persecution in Sri Lanka, including involvement with political protests, disputes over property, threats from the Liberation Tigers of Tamil Eelam (LTTE), interrogation and torture by the Criminal Investigation Department (CID) and the Navy, and a final incident involving threats and assault by individuals claiming to be CID officers, which led to his father's death.

The central legal issue before the court was whether a jurisdictional error had occurred due to the failure to provide certain review material to the Authority, specifically a letter sent to the applicant by the Minister's Department concerning a 2014 data breach. The Minister conceded that this letter, which was in the Secretary's possession, should have been provided to the Authority under section 473CB(1) of the Migration Act. The court was required to determine if this non-compliance could have resulted in the Authority making a different decision, assessing this "realistically" and considering whether the applicant had discharged the onus of proving the missing material was significant.

The court applied the principles established in *Minister for Immigration and Border Protection v CPA16*, which state that a failure to provide review material under section 473CB(1) constitutes jurisdictional error if the material could have realistically led to a different decision. The Authority's decision had found the applicant's claims regarding adverse profiles with Sri Lankan authorities and risk of harm on return to be not credible, accepting only that he might face a short detention or fine as an illegal returnee. The court noted the Minister's acceptance that the data breach letter was not provided to the Authority, and that this failure constituted a breach of section 473CB(1). However, the court found that the applicant had not discharged the onus of proving that the data breach letter was material in a way that could have realistically led to a different decision by the Authority, given the Authority's findings on the applicant's claims.

The court ultimately found that while there was a breach of section 473CB(1) of the Migration Act due to the failure to provide the data breach letter to the Authority, the applicant had not demonstrated that this failure resulted in jurisdictional error. The applicant had not discharged the onus of proving that the missing material could have realistically led to a different decision by the Authority. Therefore, the application for judicial review was dismissed.