ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 27 July 2023
• Neutral Citation: [2023] FCA 847
• Date: 27 July 2023
• Court: Federal Court

Federal Court of Australia

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

Appeal from:	ARO17 v Minister for Immigration and Border Protection [2020] FCCA 631
File number(s):	NSD 288 of 2020
Judgment of:	WIGNEY J
Date of judgment:	27 July 2023
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court dismissed appeal of Immigration Assessment Authority’s decision to affirm refusal of protection visa – whether primary judge erred in finding that Authority’s decision was not legally unreasonable in applying a binary framework and arbitrary standard of reasoning when assessing whether appellant was a person of interest to Sri Lankan authorities – legal unreasonableness not found – leave granted to raise two further grounds of appeal – whether Authority misconstrued and misapplied s 473DD of the Migration Act 1958 (Cth) – whether Authority failed to form requisite state of satisfaction pursuant to s 473DD regarding new information – no errors, or no material errors, found in IAA’s application of s 473DD for either ground – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 473DD
Cases cited:	APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 ARO17 v Minister for Immigration & Anor [2020] FCCA 631 AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 BRH18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 74 BXT17 v Minister for Home Affairs (2021) 283 FCR 248; [2021] FCAFC 9 BYA17 v Minister for Immigration & Border Protection (2019) 269 FCR 94; [2019] FCAFC 44 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 Park v Brothers (2005) 222 ALR 421; [2005] HCA 73 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	85
Date of hearing:	2 November 2022
Counsel for the appellant:	Mr R Chia
Counsel for the first respondent:	Mr T Reilly
Solicitor for the first respondent:	Australian Government Solicitor

ORDERS

		NSD 288 of 2020
BETWEEN:	ARO17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	WIGNEY J
DATE OF ORDER:	27 July 2023

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1. This is yet another sad case involving a Sri Lankan Tamil asylum seeker endeavouring to overturn a decision by the Immigration Assessment Authority affirming a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs which denied him a protection visa. Despite finding that the appellant had been detained and severely mistreated at the hands of Sri Lankan authorities on the basis of his ethnicity and supposed links to a political organisation, the Authority was nevertheless satisfied that the appellant was not a “person of significant interest to the [Sri Lankan] authorities”. The Authority determined, largely on the basis of that finding, that it was not satisfied that the appellant faced a real chance of harm if he was returned to Sri Lanka, or that Australia otherwise owed the appellant any protection obligations. The end result was that the appellant was found not to meet the criteria for the grant of a protection visa. A judge of the then Federal Circuit Court dismissed the appellant’s judicial review challenge to the Authority’s decision. The appellant appealed to this Court from that judgment.

2. The essential issue for determination in the appeal is whether the Authority made any error of a sort which vitiated the exercise of its review jurisdiction in the appellant’s case. The appellant contended that the Authority made three errors. The first alleged error was that the Authority was said to have engaged in a process of reasoning or fact-finding which was legally unreasonable. The primary judge rejected that contention. The appellant submitted that his Honour was wrong to do so. The second and third alleged errors related to the manner in which the Authority dealt with so-called “new information” which the appellant put before it and, specifically, whether the Authority dealt with that information in the manner it was required to do so under s 473DD of the Migration Act 1958 (Cth). The appellant did not put any arguments to the primary judge based on non-compliance with s 473DD of the Act and accordingly required the Court’s leave to raise the new arguments on appeal.

3. For the reasons that follow, none of the appellant’s appeal grounds have any merit and his appeal must be dismissed. References in these reasons to provisions in the Act may be taken to be references to those provisions as at the date of the delegate’s decision.

The appellant’s claim to be entitled to protection

4. The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and of Catholic religiosity.

5. The appellant arrived in Australia by boat on 13 October 2012. He did not have a visa which permitted him to enter Australia.

6. On 5 April 2016, the appellant applied for a species of protection visa called a Safe Haven Enterprise Visa (Subclass 790) visa.

7. A critical criterion for the grant of such a visa, in the appellant’s case, was that he was a non-citizen in respect of whom the Minister was satisfied Australia has protection obligations either because he was a refugee, or because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm: ss 36(2)(a) and (aa) of the...