BBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1668

Federal Court of Australia

BBK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1668 Appeal from: BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 318

File number: VID 298 of 2022

Judgment of: LOGAN J

Date of judgment: 1 December 2023

Catchwords: MIGRATION – appeal of a judicial review decision by the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) of a Minister's decision not grant the applicant a Safe Haven Enterprise visa, affirming the decision of the Immigration Assessment Authority (Authority) – whether the primary judge fell into jurisdictional error by not finding that the Authority failed to consider a relevant consideration that the appellant had been detained and interrogated by Sri Lankan authorities and alternatively whether the appellant is at risk of torture if removed to Sri Lanka – whether the primary judge erred in not finding that the Authority wrongly interpreted the Migration Act 1958 (the Act), specifically what is a 'real chance … the person would be persecuted' (s 5J(1)(b)), what constitutes a 'well-founded fear of persecution' (s 5H(1)(a) and 'real risk' of significant harm within the meaning of s 36(2)(aa) of the Act – whether the primary judge fell into error in not finding the Authority was unreasonable in its finding there was no well-founded fear or persecution or a real risk of significant harm as provided for under s 36(2)(a) or s 36(2)(aa) of the Act – where the proper function of judicial review is not to scrutinise an administrative decision to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) and Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 considered – where, on account of using different language to describe the appellant's treatment by Sri Lankan authorities, the Authority did not fail to consider a relevant consideration or integer per Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALRJ 1088, Wu Shan Liang applied – where the Authority was entitled to rely upon contemporary information in a Department of Foreign Affairs and Trade country report to be satisfied there was no 'real risk' of significant harm within s 36(2)(aa) of the Act; there was no error of unreasonableness – appeal dismissed