ERM18 v Minister for Immigration and Multicultural Affairs
[2025] FCA 228
•20 March 2025
FEDERAL COURT OF AUSTRALIA
ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228
Appeal from: ERM18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 740 File number(s): WAD 124 of 2021 Judgment of: SARAH C DERRINGTON J Date of judgment: 20 March 2025 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissal of an application for judicial review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise (subclass 790) visa – where Authority not satisfied the appellant is a person in respect of whom Australia owes protection obligations – where appellant alleged primary judge failed to have regard to all evidence which was before the Court – whether jurisdictional error shown – appeal dismissed Legislation: Migration Act 1958 (Cth), pt 7AA, div 3, ss 5, 36, 46A, 473CA, 473CB, 473DD, 476 Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420
CQR17 v Minister for Immigration & Border Protection [2019] FCAFC 61; 269 FCR 367
Craig v South Australia [1995] HCA 58; 184 CLR 163
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
ERM18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 740
Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 17 March 2025 Counsel for the Appellant: Appellant was self-represented Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Second Respondent filed a submitting notice, save as to costs ORDERS
WAD 124 of 2021 BETWEEN: ERM18
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SARAH C DERRINGTON J:
INTRODUCTION
This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 15 April 2021: ERM18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 740 (PJ). The primary judge dismissed an application by the appellant, assigned the pseudonym ERM18, for judicial review of a decision of the Immigration Assessment Authority. The Authority’s decision affirmed the decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).
The appellant is a Sri Lankan citizen and former professional national soccer team member who arrived in Australia in April 2013 as an unauthorised maritime arrival. The Department advised the appellant on 20 May 2016 that the Minister had “lifted the bar” pursuant to s 46A(2) of the MigrationAct 1958 (Cth), and the appellant was invited to make an application for either a SHEV or a Temporary Protection (subclass 785) visa.
On 19 May 2017, the appellant submitted an application for a SHEV to the Department, in which he stated that he feared harm if forced to return to Sri Lanka on the basis of his being a Tamil Muslim with suspected links with the Liberation Tigers of Tamil Eelam (LTTE). The claims advanced by the appellant in his statement are summarised at PJ[3]. In particular, the appellant claimed that in October 2009, Sri Lankan police had begun looking for him concerning suspected ties to the LTTE because, for two weeks in 2002, he had trained with a Tamil professional soccer team which the group organised. He also claimed that he feared harm from the Muslim community arising from his relationship with his ex-partner, who is Hindu. The appellant stated that he had been threatened by members of the community in his native Sri Lanka and also feared harm at the hands of the family of his ex-partner’s first husband.
On 15 January 2018, a delegate of the Minister refused to grant the appellant a SHEV under s 36(2)(a) or (aa) of the Migration Act, finding that the appellant was not a ‘non-citizen in Australia in respect of whom Australia has protection obligations’ because the delegate was not satisfied that he was a refugee, nor that he faced a real risk of suffering significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka.
The Department referred the decision to the Authority on 19 January 2018 for merits review pursuant to s 473CA of the Migration Act. The appellant, through a migration agent, sent to the Authority by email on 9 February 2018 a submission and accompanying documents in support of his visa application. The Authority also subsequently sought from the Secretary copies of three documents which had been before the delegate in making the original decision, though only one of the three was provided, as the other two had been destroyed in the intervening period on the basis that “they were not deemed to be integral to the decision making of the case”.
On 15 August 2018, the Authority affirmed the delegate’s decision not to grant a SHEV to the appellant, as it was not satisfied that he met the relevant protection criteria under s 36(2) of the Migration Act for either refugee protection or complementary protection. A comprehensive summary of the Authority’s decision and its statutory obligations and powers on review is provided by the primary judge at PJ[11]-[53], which summary need not be restated here. In making its decision, the Authority considered the review material provided by the Secretary, along with the appellant’s submission. While the Authority accepted many of the claims as to the appellant’s background and situation in Sri Lanka, it did not accept that his claims to fear harm on any of the bases he had advanced would amount to “serious harm” or “significant harm” as those terms are defined in the Migration Act.
THE PRIMARY JUDGMENT
It was uncontroversial that, in his application to the Federal Circuit Court for judicial review of the Authority’s decision, the appellant was required to show that the Authority had fallen into jurisdictional error to obtain relief. His application advanced two grounds: first, that the Authority erred in failing to take into account relevant information; secondly, that the Authority erred in making a decision “not fully understanding” his claim (PJ[54]).
As to the first ground, the appellant was asked by the primary judge at the hearing to clarify what information was said to have not been taken into account by the Authority. In response, the appellant referred to his claim that he feared harm if returned to Sri Lanka on the basis of his religion (PJ[75]). However, as the primary judge noted (PJ[76]), the Authority expressly had regard to the appellant’s religion in considering whether there was a real risk of him suffering significant harm if removed from Australia.
Clearly cognizant of the appellant’s self-represented status, the primary judge then looked beyond the claim articulated by the appellant and identified two potential arguments under the umbrella of his overarching “failure to consider relevant material complaint” (see eg, Craig v South Australia [1995] HCA 58; 184 CLR 163 at 198) (PJ[78]):
(a)that the Authority erred in failing to have regard to relevant information as some information was not referred to the Authority by the delegate (“Ground 1A”); and
(b)that the Authority erred in finding that it could not have regard to the “new information” that the Appellant had provided in his submission (“Ground 1B”).
In respect of Ground 1A, the primary judge referred to evidence that indicated that some documents which had been provided by the appellant to the Minister’s delegate in making the original decision had not been referred to the Authority in conducting the review, despite s 473CB(1)(b) of the Migration Act requiring the Secretary to provide them to the Authority (PJ[81]-[82]). The primary judge, correctly with respect, identified that the Secretary’s explanation that the materials were not provided as they were “not deemed to be integral to the decision making of the case” misconstrued the application of the provision, and as such found that the failure to provide the material constituted a breach of s 473CB (PJ[82]-[84]).
However, his Honour concluded that this breach was not such as to amount to jurisdictional error in the sense described in CQR17 v Minister for Immigration & Border Protection [2019] FCAFC 61; 269 FCR 367 at [43], because the breach did not deprive the appellant of the possibility of a successful outcome. This was the case because the Authority had accepted as true the very claims that the excluded documents were said to support. Accordingly, it followed that the Secretary’s failure to provide documents to the Authority which corroborated those claims had no bearing on the appellant’s prospects. Ground 1A therefore was not established.
In respect of Ground 1B, it suffices to note that, upon evaluating the Authority’s assessment of each item of “new information” (PJ[96]) which the appellant had provided to the Authority in his submission but which the Authority indicated it would not have regard to, his Honour was satisfied that the Authority had properly assessed all of the new information that was before it, in accordance with the requirements of s 473DD of the Migration Act as enunciated by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 (PJ[149]). Ground 1B therefore was dismissed.
As to the second ground, the primary judge rejected the contention that the Authority had misunderstood the claims before it, describing its summary of the appellant’s claims as being accurate (PJ[154]-[155]), and concluded that the Authority had properly considered those claims (PJ[168]).
His Honour also considered and rejected various additional claims raised by the appellant orally, being his allegation that the Minister’s delegate was biased (PJ[170]-[171]), his complaint that his ex-partner had obtained a visa while he had not (PJ[172]), his claim that the Authority refused to consider his claimed fear of harm at the hands of his ex-partner’s first husband (PJ[173]-[176]), and his submission that he could not return to Sri Lanka (PJ[177]).
The primary judge was not satisfied that any of these matters indicated that jurisdictional error had been made by the Authority. Accordingly, his Honour dismissed the judicial review application with costs.
THE APPEAL
By his Notice of Appeal dated 7 May 2021, the appellant contends that the primary judge “didn’t adequately examine the evidence that was placed and didn’t exercise the Courts [sic] proper jurisdiction”. The appellant seeks the issue of a writ of mandamus preventing the Minister from acting on the decision of the Authority, and an order that a “new enquiry” be conducted (i.e. an order that the matter be remitted to the Authority for redetermination according to law). For the reasons that follow, the appeal must be dismissed.
The materials before the Court on this appeal were the Notice of Appeal, an Appeal Book filed by the Minister’s representatives on 7 February 2025 (which contains the primary judgment and the Court Book which was before the primary judge), and an outline of submissions for the Minister filed on the same date. The second respondent filed a submitting notice save as to costs. While the appellant was given the opportunity to file written submissions in response, he did not avail himself of that opportunity.
The appellant appeared before the Court via telephone without legal representation, though was assisted by a Tamil interpreter who joined the hearing by audio-visual link. Cognizant that there is no right to legal representation in migration proceedings (ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25]), I acknowledge the Court’s remarks in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate that an unrepresented party be given an opportunity to explain orally the matters that are said to give rise to an appeal. I am satisfied that the appellant was provided such an opportunity at the hearing of the appeal to articulate and clarify, with the assistance of the interpreter, the content of the Notice of Appeal and the substance of his contentions as to the errors alleged to have been made by the Authority and by the primary judge. Further, the Court has endeavoured to identify and beneficially construe the potential arguments that the appellant has sought to advance, consistently with the Court’s duty to self-represented litigants as expressed in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1 at [14], and has remained astute to possible bases of jurisdictional error outside of those explicitly raised.
In his single ground of appeal, the appellant contends that the primary judge failed to conduct an adequate examination of the evidence in dismissing his application for judicial review. During the hearing of the appeal, I asked the appellant to identify exactly what information he alleged was not taken into account by the primary judge. The appellant referred to a photograph of him wearing a soccer jersey. He said that this was relevant information in that the Authority had rejected his claim that he had been forced to train with the LTTE soccer team in 2002, and that he had travelled to Malaysia with a Sri Lankan soccer team in 2006.
The photograph to which the appellant referred was seemingly the soccer team photograph found at page 178 of the Court Book and identified by the primary judge at PJ[96(a)]. This photograph was provided to the Authority as part of the appellant’s submission on 9 February 2018, but was not before the Minister’s delegate in making the original decision. The Authority was therefore required to consider, against the requirements of s 473DD of the Migration Act, whether it could take the photograph into account as “new information”. It determined that it could not (PJ[102], quoting Authority reasons at [6]).
The primary judge outlined, correctly in my respectful view, the framework which governs the Authority’s task in performing the procedural duty imposed on it by s 473DD in its conduct of a review, identifying that: the requirements of the provision are cumulative (PJ[98], citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [31]); s 473DD(b) should be considered before s 473DD(a) (PJ[99]-[100], citing AUS17 at [10]-[12]); and the criterion in s 473DD(b) are therefore mandatory relevant considerations when determining whether s 473DD(a) is met (PJ[100]) (see also AUS17 at [12]).
When the judicial review application was brought before the primary judge, his Honour determined what he termed “Ground 1B” by considering the Authority’s reasons for not taking the photograph (amongst the various other items of “new information”) into account (PJ[102]-[105]). The primary judge concluded that the Authority had assessed that material in accordance with the requirements of the statutory framework as articulated in AUS17 (PJ[149]). It therefore cannot be said that the primary judge failed to have regard to this evidence.
In any event, the Authority did not reject the relevant claims. As the primary judge noted, the Authority accepted that the appellant travelled to Malaysia in 2006 to play soccer (PJ[86]), that he had played soccer professionally in Sri Lanka (PJ[88]), that he had appeared in the media in connection with his soccer career (PJ[92]-[93]), and that he had been forced to train with the LTTE soccer team for up to two weeks (PJ[158]). However, the Authority did not accept that the appellant would be of interest to Sri Lankan authorities or that he would have suspected links with the LTTE due to those matters (PJ[158], citing Authority reasons at [17]-[20]).
Even if I look beyond the appellant’s specific contention concerning the photograph, I cannot discern any error in the primary judge’s consideration of any of the evidence which was before the Court below, in circumstances where his Honour:
(a)carefully assessed the Authority’s decision and supporting reasons (being the primary evidence before the Court) to determine whether jurisdictional error was made, including by an analysis of all of the findings it had made in affirming the delegate’s decision (PJ[11]-[53]).
(b)in assessing Ground 1 put below, construed the ground as favourably as possible and identified the two best possible arguments that the appellant could have made (PJ[77]-[78]); nevertheless, the evidence before the primary judge did not demonstrate that there had been jurisdictional error on the part of the Authority.
(c)in assessing Ground 2 put below, considered the oral clarification by the appellant as to the nature of his claim which he contended was “misunderstood” by the Authority (PJ[151]-[153]) against the Authority’s summary of the appellant’s claims (PJ[154], quoting Authority reasons at [13]), and explicitly noted a review of additional evidence before the Court, namely the appellant’s arrival interview and visa application and the original decision of the Minister’s delegate (PJ[155]). It was on the basis of this review and comparison of the available evidence that the primary judge was satisfied that there was no misunderstanding by the Authority (PJ[155]-[156]).
(d)considered possible further bases for a finding of jurisdictional error as raised by the appellant in oral submissions, examining the evidence as to each additional claim where relevant (PJ[170]-[178]).
All of the foregoing demonstrates that the primary judge conducted a thorough and detailed examination of all of the evidence which was before the Court. No error is shown.
During oral submissions on the appeal, the appellant was asked if there were any additional matters beyond the evidence ground which he wished for the Court to consider. The appellant responded with various concerns he holds as to the prospect of being returned to Sri Lanka, including that he no longer has any family relatives who could take him in, and that he has very little money to sustain himself. While I have sympathy for those very difficult circumstances, they are matters which do not bear on my determination as to whether the primary judge fell into jurisdictional error.
The appellant also raised his fears that he would suffer harm in Sri Lanka because of his previous inter-faith relationship with a Hindu woman. That claim was first advanced in the appellant’s statement of claims in his application for a SHEV in 2017 (PJ[3]), was maintained before the Authority (Authority reasons at [13], [23]-[24]), and was explicitly taken into consideration by the primary judge (PJ[34], [154]-[155], [160]). So too was the appellant’s claim to fear harm from his ex-partner’s ex-husband and his family on account of their relationship (PJ[161], citing Authority reasons at [25], [37]). The rejection of those claims by the Authority, and subsequently by the primary judge, does not in my view disclose any error.
To the extent that the appeal ground agitated in the Notice of Appeal contends that the primary judge failed to exercise the “proper jurisdiction” of the Court, it was evident during oral argument that such a contention is founded on a misapprehension that the Court’s proper jurisdiction is to conduct merits review of the Authority’s decision. As the primary judge made clear to the appellant, the task of the Court below was limited to assessing whether the Authority fell into jurisdictional error in the sense that it made a material error in arriving at its decision (PJ[69], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272).
It is no part of the jurisdiction of the Federal Circuit Court to undertake a merits review of the Authority’s decision. The role of the Court is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker (see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [327]). There is therefore no substance to such a complaint.
DISPOSITION
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. Associate:
Dated: 20 March 2025
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