Plaintiff S254-2018 v The Honourable Justice McKerracher & Ors

The plaintiff, a Sri Lankan citizen, sought constitutional and other writs from the High Court of Australia, including certiorari and mandamus. This followed the refusal of his application for a Safe Haven Enterprise Visa, the affirmation of that refusal by the Immigration Assessment Authority, and unsuccessful judicial review proceedings in the Federal Circuit Court and an appeal application in the Full Court of the Federal Court. The plaintiff sought to quash decisions of the Federal Circuit Court, the Full Court of the Federal Court, and the Immigration Assessment Authority, and to direct the Authority to reconsider his application.

The High Court was required to determine whether the plaintiff had established jurisdictional error on the part of the Federal Circuit Court or the Full Court of the Federal Court, and whether the Immigration Assessment Authority had denied him procedural fairness. Specifically, the plaintiff contended that the Authority acted upon an invalid disclosure certificate issued under s 473GB of the Migration Act 1958 (Cth) without disclosing its existence, thereby denying him procedural fairness. The plaintiff also challenged the Full Court of the Federal Court's decision to dismiss his application for an extension of time to appeal, arguing that the Full Court had erred in its assessment of the prospects of success of his proposed appeal.

The Court dismissed the application, applying High Court Rules 2004 (Cth) r 25.09.1. It reasoned that the plaintiff had not identified any jurisdictional errors by the lower courts, distinguishing between appealable errors of law and jurisdictional errors. Furthermore, the Court relied on its decision in *BVD17 v Minister for Immigration and Border Protection*, which held that the procedural fairness obligations of the Immigration Assessment Authority in relation to a s 473GB disclosure certificate are confined to the discretions conferred by s 473GB(3) of the Migration Act. The Court found that the plaintiff had not advanced arguments that would distinguish *BVD17* or demonstrate that the Full Court's decision was incorrect, particularly concerning the non-disclosure of the certificate. The plaintiff was ordered to pay the Minister's costs.