Acn20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2021] FCCA 685

•

9 April 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 685

File number(s): SYG 63 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 9 April 2021
Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (protection) visa (“SHEV”) – whether the Authority fell into jurisdiction error in failing to consider new information –whether that jurisdictional error is material to the decision – considerations in relation to AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 – no jurisdictional error is made out – the application is dismissed.
Legislation: Migration Act 1958 (Cth), ss 5J, 36(2), 473DD.
Cases cited:

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23.

ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593.

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.

BXT17 v Minister for Home Affairs [2021] FCAFC 9.

EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657.

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

WZAVW v Minister for Immigration [2016] FCA 760.

Number of paragraphs: 61
Date of last submission/s: 24 March 2021
Date of hearing: 24 March 2021
Place: Parramatta
Solicitor for the Applicant: The Applicant appeared in person.
Counsel for the Respondents: Mr Johnson of Counsel appeared on behalf of the First Respondent.

ORDERS

SYG63 of 2020
BETWEEN:

ACN20

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

9 APRIL 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $7,467.00

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. The applicant is a citizen of Bangladesh. The applicant arrived in Australia as an unauthorised maritime arrival on 12 July 2013.

  2. On 17 June 2017, the applicant lodged an application for a Safe Haven Enterprise (protection) visa (“SHEV”). On 22 October 2019, a delegate of the Minister for Immigration


    (“the delegate”) refused to grant the applicant his visa. The delegate did not accept that the applicant was active within the Jamaat e Islami (“JI”) political party in Bangladesh and was not otherwise satisfied that the applicant had a well-founded fear of persecution or that there was a real risk that he would suffer harm if he returned to Bangladesh.

  3. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 16 December 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

  4. The applicant now seeks judicial review of the Authority’s decision

    THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

  5. The decision record of the Authority runs to some 18 typed pages comprising55 paragraphs. It is both comprehensive and detailed as to the material considered and the reasons for the ultimate decision.

  6. At the commencement of the decision, the Authority considered new information that had been provided to it by the applicant. At paragraph 4 of its decision, the Authority considered that a statement provided by the applicant, apart from information discussed below, simply restated the applicant’s claims. It was regarded as argument rather than information and was not considered.

  7. At paragraph 5 of its decision, the Authority considered two new claims. The first was that because the applicant had attended events in Australia organised by the Bangladesh National Party (BNP) he would be identified as a BNP activist. The second claim was thatthe applicant would face “severe discrimination” if he was returned to Bangladesh on account of his mental health issues.

  8. The Authority noted that while some information relating to the applicant’s political involvement in Australia and his mental state was before the delegate, in the form of photographs of the applicant attending political activities in Australia in 2014, 2016 and 2018 (but containing no reference to the BNP) and a psychologist report dated February 2018, neither the applicant, nor his representative who assisted him to prepare the SHEV application claimed either in the application, at the SHEV interview, or post interview, that he feared harm for either of these reasons.

  9. The Authority noted that the applicant did not refer to himself as having any involvement with the BNP or notate on the photographs that he provided that they related to BNP activities in Australia. Rather his account of political involvement at that time, and at all times related entirely to JI. Neither the applicant, nor his representative explained why he did not mention any fear of harm for this reason in his SHEV interview.

  10. No explanation was provided for the delay in making these claims, nor has any information been provided about who the applicant fears will discriminate against him or what form any differential treatment will take because of his claimed mental ill-health. Furthermore, no updated information had been provided about the applicant’s current psychological state or any treatment he has received in the 22 months since the psychologist saw him on what appears to be a single occasion in February of 2018. The Authority found that there were not exceptional circumstances to justify considering the new information.

  11. At paragraph 6, the Authority summarises the applicant’s claims as follows:

    ·     Because the applicant’s late father was a JI worker, he starting supporting JI. The applicant was involved with them from 2004 to 2009 during which time he learnt about the party and its policies.

    ·     In 2009 the applicant became a JI worker and contributed financially to the party. As a result, the Awami League (AL) cadres regularly demanded that the applicant give them money. The applicant paid them because they said if he did not, they would abduct him or lodge a false case against him.

    ·     In around 2011 and 2012, the applicant was promoted within the JI organisation.

    ·     In mid-2012, the applicant was abducted from his house by AL cadres but was released after being tortured.

    ·     In early 2013, the applicant was appointed JI General Secretary for his local district.

    ·     In early 2013 the applicant was implicated in a false political case and a warrant was issued for his arrest. The applicant went into hiding.

    ·     About two weeks later when the applicant returned home to visit his sick mother, he was attacked by AL cadres, shot and stabbed in the legs. They also attacked the applicant’s brothers and shot his mother who came to his aid. The applicant’s later died of her wounds.

    ·     The applicant claims that he was abducted and placed in a van where he fell unconscious. The applicant’s abductors thought that he was dead and threw him in the jungle where he remained until he was taken to a hospital by a farmer.

    ·     The applicant spent a month in hospital and left without telling anyone. JI leaders and workers he contacted advised him that he needed to leave Bangladesh.

    ·     The applicant went to Dhaka and paid an agent to organise a passport and a visa for him.

    ·     The applicant fears that if he returns to Bangladesh he will be arrested at the airport, detained and tortured. The applicant also fears AL activists and associated criminals will perceive him as wealthy and abduct and extort him.

  12. At the applicant’s August 2019 SHEV interview, he made the following additional claims:

    ·     The applicant’s brother, M1, who had been involved with the BNP and JI was in hiding.

    ·     The applicant’s brother, M2, was arrested in August 2018 on a false charge, but subsequently released, however, remains under investigation.

    ·     The applicant’s cousin was killed in Dhaka while participating in a JI demonstration.

    ·     In Australia in 2015 and 2016 the applicant has been very politically active online but after his brother in Bangladesh was threatened, he discontinued this activity.

  13. At paragraphs 10 and 11 of its decision, the Authority accepted the applicant’s identity and that he is a Bangladeshi citizen, and a Muslim of Bangla ethnicity. Paragraphs 12 through to 16 of the Authority’s decision, set out, in further detail, the claims set out above. In paragraph 15 of its decision, the Authority notes a claim that the applicant was involved in a false criminal case and that the local police issued an arrest warrant. It was after this, that the applicant claims, Al Carters came to his home and kidnapped him.

  14. At paragraph 17 of the Authority’s decision, it was noted that in December 2018 that the applicant’s representative provided to the Department several documents relating to a criminal case against the applicant. This included that the applicant had attacked and injured a Constable with a knife, as well as a document ordering that he be arrested and placed before the Court.

  15. At paragraph 18 of its decision, the Authority notes that in January 2019, the applicant’s representative provided a document from a Health Complex referring to the applicant being treated from 21 February to 21 March 2013 for sharp cutting to the left leg and a shot to the right leg.

  16. At paragraph 19 of its decision, the Authority noted that further documents were provided to the Department prior to the applicant’s SHEV interview including a number of photographs depicting the grave of his mother, and photographs taken in Australia purporting to show the applicant participating in political activities in Australia.

  17. Paragraphs 22 to 24 of the Authority’s decision deal with additional material that was provided to the delegate prior to the delegate making their decision.

  18. At paragraph 25 of its decision, the Authority notes that in December 2018, the applicant provided to the Department a letter dated 16 February 2018 from a clinical psychologist noting that the applicant had met the psychologist for one meeting, three days earlier where the applicant complained of anxiety, sadness insomnia and anger. During the SHEV interview, the delegate enquired as to whether the applicant had worked in Australia, but he stated that he had some mental issues and was unable to. In the Protection Visa Decision Record, the delegate did not accept that the applicant was suffering from ongoing mental health issues and did not consider that he was at risk of harm for that reason.

  19. At paragraph 26 of its decision, the Authority accepted that the applicant was seen by a psychologist, on one occasion, two years previously. However, on the information before it, the Authority was not satisfied that the applicant has ever been diagnosed with, or treated for, mental illness. Nor has the applicant been provided with any prescribed medication by a medical professional for a psychological or physical illness. In these circumstances, the Authority was not satisfied that the applicant had an ongoing mental health condition or currently requires any medical treatment.

  20. At paragraphs 27 and 28 of its decision, the Authority notes that, at the request of the applicant’s representative, it had listened to an audio recording of the SHEV interview. At no point, did either the applicant, or the interpreter, state that they were having difficulty hearing each other, notwithstanding the fact that the interpreter was in a different location to the applicant.

  21. Paragraphs 29 to 30 of the Authority’s decision deal with the country information that was before the Authority. At paragraph 31, the Authority accepted that politically motivated violence occurs in Bangladesh. However, the Authority was not satisfied that the applicant had been involved with JI. Further, the Authority did not accept that the applicant was successively a JI supporter, worker or other official between the years of 2004 to 2013. The Authority did not accept that AL Cadres extorted money from the applicant, threatened him and abducted and tortured him in 2012. The Authority did not accept that AL Cadres lodged a false criminal case against him, killed his mother or injured his brothers.

  22. At paragraph 32 of its decision, the Authority noted that the applicant’s recall and restate of many of the claims he set out in his SHEV application, strongly suggested he had rote learned these claims. The applicant denied that he was reading these claims out during the SHEV interview. When asked to expand on his claims, the applicant had difficulty. The Authority noted that these limited responses undermine the credibility of the applicant’s claims, given that country information before the Authority indicates that JI members are highly trained.

  23. The Authority notes, at paragraph 33 of its decision, that at the applicant’s arrival interview, the applicant was asked if he, or any member of his family, had been associated with, or involved, with any political group or organisation. The applicant answered “no”. When asked if the applicant was involved with any social or religious group, he stated that he “just supports JI from his heart but not any activities”. Furthermore, the Authority notes, at paragraph 34 of its decision, that country information before the Authority does not refer to the existence of JI, or the targeting of JI in the district where the applicant claims he is from. At paragraph 35 of its decision, the Authority noted that, at his arrival interview, the applicant said that his mother was not deceased or missing and that she was living in their local village with a number of his adult siblings. These discrepancies were not explained in either the SHEV interview or subsequent to it in post interview submissions.

  24. At paragraph 37 of its decision, the Authority notes, in relation to the various documentation that was provided by the applicant, that country information indicates that fraudulent documents are relatively common in Bangladesh. In these circumstances, the Authority placed no weight on the documents.

  25. At paragraph 39 of its decision, the Authority concludes that, as it was not satisfied that the applicant was involved with JI prior to his arrival in Australia, it was not satisfied that he would seek to be involved with JI if he was returned to Bangladesh. The applicant stated that he ran a fruit and vegetable business prior to leaving Bangladesh. The Authority was not satisfied that if the applicant were to return, that he would be perceived as being wealthy, be abducted or extorted by AL or associated criminals.

  26. Paragraphs 40 through to 42 of the Authority’s decision deal with claims in relation to the applicant’s brothers. The Authority was not satisfied as to the claims made by the applicant in relation to them, noting that fraudulent documents are commonly available in Bangladesh. Therefore, the Authority placed no weights on legal documents relating to M2. No further material had been provided to support the claim that the applicant’s brother is in hiding. The applicant made no mention of his brother, or his fate, in the post interview submissions.

  27. At paragraph 43 of its decision, the Authority did not accept that the applicant has been politically active on social media since he arrived in Australia. No evidence was provided of the applicant having any social media account or posting pro-JI or other political material relating to Bangladesh to account.

  28. At paragraph 44 of its decision, the Authority accepted that the applicant has attended one event relating to political developments in Bangladesh in each of the years 2014, 2016 and 2018. The first two events were held in private, however, the Authority noted that the 2018 event was held in public. The Authority was not satisfied that the applicant had engaged in the conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Authority therefore disregarded this conduct.

  29. Paragraphs 45 through to 49 of the Authority’s decision deal with the applicant’s fears of returning as a failed asylum seeker. Given that the Authority had determined that the applicant was not a high profile person who would attract adverse attention of authorities due to engaging in political activities outside of Bangladesh, the Authority was not satisfied that he was at risk of harm upon his return. The Authority also did not accept that there was an arrest warrant outstanding for the applicant. This was based on the fact that the applicant was issued with a passport in his own name and was legally able to depart Bangladesh in 2003. The Authority found that this suggests that the applicant was not of ongoing interest to Bangladeshi authorities or the AL at the time. Accordingly the Authority concluded that the applicant did not have a well-founded fear of persecution in Bangladesh.

  30. Paragraphs 51 through to 55 of the Authority’s decision deal with complimentary protection considerations. The Authority was not satisfied, on the same reasons, that the applicant met the criteria for complimentary protection under s 36(2)(aa) of the Migration Act 1958 (“the Act”).

    Grounds of Judicial Review
    The grounds of judicial review relied upon by the applicant are set out in his Initiating Application filed with the Court on 10 January 2020. They are as follows verbatim:

    Ground One

    The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

    Ground 2

    The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

    Ground 3

    The Tribunal failed to assess the harm that I may face based on my political opinion against the Awami League Party

    THE APPLICANT’S SUBMISSIONS

  31. The applicant appeared before the Court unrepresented. He was assisted by a Bengali interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court books and a copy of the first respondents written submissions. The applicant confirmed with the Court that he had read and understood them. The applicant was also provided with a pen and paper in order to make notes during the course of the hearing, should he wish to do so.

  32. At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review and not merits review. The Court explained the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.

  33. Despite Court Orders, no written submissions or any other written material was provided to the Court by the applicant in support of his case. The applicant told the Court that he had submitted all relevant documents to the Department and the Authority and that he had faith he would be given justice by the Court.

  34. At the conclusion of the first respondent’s oral submissions, the applicant was asked if there is anything he wished tell the Court in reply. The applicant stated that he did not wish to say anything further.

    THE FIRST RESPONDENT’S SUBMISSIONS

  35. Counsel for the first respondent submitted that as pleaded, the first ground is un-particularised and wholly fails to explain which aspects of the applicants claims “the Tribunal” (presumably the Authority) failed to consider.

  36. In any event, Counsel for the first respondent submits that the ground is without substance. The Authority set out all of the applicant’s claims and engaged in a thorough and detailed consideration of them. The Authority rejected the applicant’s claims on the basis of credibility and on the country information before it. These findings were open to the Authority to make. It is well-established that assessment of credibility as a function of the Authority “par excellence”: (see Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]-[68]). The choice and assessment of country information is a factual matter for the Authority: (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]) (“NAHI”).

  1. It was submitted by Counsel for the first respondent that the second and third grounds are also without substance. The Authority gave clear consideration to the applicant’s claims to fear harm because he holds a political opinion against the AL party. The Authority ultimately did not accept that the applicant would be imputed to have an anti-AL political opinion. The Authority made broad adverse credibility findings, including that the applicant was not active within the JI or any other political party when he lived in Bangladesh, as well as that he had no political profile and was not of any adverse interest to the AL, or anyone else.

  2. The Authority also found that most returnees, including failed asylum seekers, are unlikely to face adverse attention, however, authorities may take an interest in high profile individuals who have engaged in political activities outside Bangladesh. Given that the applicant “provided very little information about the nature of his role in diaspora politics”, and had not “claimed that he had initiated or played a leading role in any of these events or that he has joined any Bangladeshi political organisation active in Australia”, the Authority was not satisfied that the applicant’s involvement in Bangladeshi politics could be characterised as high profile. In consequence, the Authority was not satisfied there was a real risk that the applicant would suffer significant harm.

  3. As a matter of fairness, Counsel for the first respondent submitted that the manner in which the Authority dealt with the new information that was before it was consistent with the procedure set out by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”). It is unnecessary for the Authority to engage in a formulaic consideration of s 473DD(b) of the Act, provided the Court can infer from the Authority’s reasons that the requisite assessment has occurred prior to consideration as to whether “exceptional circumstances” exist for the purpose of s 473DD(a) of the Act: (see APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]).

  4. In respect of the first claim, the Authority found that the applicant’s claims to have been involved with the BNP in Australia were not mentioned in his SHEV interview. It is submitted by Counsel for the first respondent that this was an assessment of whether the claim was credible personal information and was made prior to the finding there were not exceptional circumstances.

  5. In relation to the second claim, that the applicant would face discrimination in Bangladesh due to mental his health issues, the Authority noted that there was no explanation as to why the material was not provided to the delegate prior to the delegate’s decision. The applicant also provided no information as to why he would fear discrimination and who would discriminate against him. The Authority considered the claims to be little more than unsupported assertions. It could be inferred that this engaged with s 473DD(b)(ii) of the Act in that the information was not personal credible information. These material was factored into the consideration of whether or not there were exceptional circumstances.

  6. By the use of the phrase in the final, sentence of paragraph 5 that “In these circumstances” the Authority “was not satisfied that there are exceptional circumstances” was also capable of supporting an inference that the Authority had engaged with the provisions of s 473DD(b)(i) and (ii) of the Act before finding that there were not exceptional circumstances.

  7. In the alternative, even if the Authority were found to have erred in its consideration of the applicant’s new clams as new information, it was submitted by Counsel for the first respondent that the error was not material: (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [38]).

  8. In relation to the claim that the applicant would fear harm on account of his identification as a BNP activist due to his attendance at BNP organised events in Australia, the Authority in fact took into account this activity in Australia and disregarded it as it was not satisfied that the conduct was engaged in otherwise than for the purpose of strengthening the applicant’s protection claims pursuant to s 5J(6) of the Act.

  9. In relation to the second claim, the applicant had failed to identify the source of the harm he said he feared and failed to provide any updated information about his meant mental state. The Court should conclude that it is “tolerably clear”: (see BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [146]), that the Authority had taken into account the applicant’s discrimination claim but would have rejected it in any event as substantiating a basis upon which the applicant could be found to meet the requirements of either s 36(2)(a) or (aa) of the Act.

    CONSIDERATION

  10. It is well established that the Authority is not required to accept, uncritically, any and all claims made by an applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). A credit findings is sound if it was “open to [the Authority] on the material, was based on rational grounds and arrived at on a consideration of matters that were logically probative of the issue of credibility”: (see Kopalapillaiv Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). It is also well settled that the country information to which the Authority has regard and the weight it gives that information is a matter for the authority: (see NAHI).

  11. The Court notes the lack of particulars in relation to each of the claims for judicial review. For that reason alone, the grounds are liable to be dismissed, as they are bare assertion without any substance: (see WZAVW v Minister for Immigration [2016] FCA 760 at [35]).The claims border on bare assertions due to the lack of detail and supporting material.

  12. In terms of the grounds of review relied upon by the applicant, the first is that “the Tribunal (presumably the Authority) failed to exercise its jurisdiction by failing to consider all aspects of my claims”. This claim cannot be sustained. It is clear that the Authority fully set out the applicant’s claims and then considered them carefully. The Authority rejected the applicant’s claims based on its findings as to his credibility, given the inconsistencies between the claims made initially at his arrival, and then, subsequently. The Court is satisfied that these findings were open to the Authority to make and that the findings were not so unreasonable as to meet the stringent requirements for legal unreasonableness, nor were the findings irrational or illogical.

  13. In relation to the second and third grounds, these also cannot be sustained. The Authority set out, in some detail, the applicant’s claims and the evidence in support of his assertions of his political opinion against the AL. These claims were rejected for the reasons that the Authority gave. Based on the totality of the evidence, the Authority was not satisfied as to the applicant’s involvement with the JI in Bangladesh prior to his arrival in Australia. The Authority very carefully considered, at paragraph 47 and 48 of its decision, the risk to the applicant upon his return. The Authority was not satisfied that the applicant’s involvement in political activities in Australia relating to Bangladesh was high profile. The Authority was also not satisfied that there was a criminal charge outstanding against the applicant.

  14. The Court is not satisfied that the applicant’s claims of his political opinion against the AL and the harm he may face upon his return, were not properly considered by the Authority. The claims were discussed in detail, however, the applicant’s claims were simply not accepted. The Court is of the view that no error arises.

  15. This leaves for consideration the issue as regards the Authority’s consideration of the new material at paragraph 5 of the decision and its compliance with the decision of the High Court in AUS17.

  16. That decision found that the Authority does not perform the statutory duty imposed by s 473DD of the Act if it does not consider the new material against the criterion specified in both s 473DD(b)(i) and (ii) of the Act prior to considering if there are exceptional circumstances, as set out in s 473DD(a) of the Act: (see AUS17 at [12]).

  17. There is no specific reference to either s 473DD(b)(i) or (ii) of the Act in the discussion of whether or not there were exceptional circumstances to warrant the consideration of the new information.

  18. The Authority noted that applicant presented two new claims to fear harm. The first was that the applicant had attended events in Australia organised by the BNP and that he would be identified as a BNP activist. The second was that the applicant would face “severe discrimination” if he returned to Bangladesh on account of his mental health issues. At the bottom of paragraph 5 of its decision, the Authority noted that no explanation was provided for the delay in making the new claims and none was apparent to the Authority, nor was any information provided about who the applicant fears will discriminate against him, or the form any differential treatment will take because of his claimed mental ill-health. Furthermore, no updated information has been provided about the applicant’s current psychological state or any treatment he has received in the 22 months since the psychologist saw him, nor was any information provided about whether the applicant will require psychological treatment in the future. In these circumstances, the Authority found that it was not satisfied that there are exceptional circumstances to consider the new information.

  19. Counsel for the first respondent submitted that, by inference, the Authority had considered whether or not the information could have been provided to the Minister before the Minister made the decision, and whether or not the information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. The Court accepts that the Authority’s decisions should not be read with “an eye keenly attuned to error”: (see ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46]). Whilst the Court accepts that a formulaic consideration of s 473 DD of the Act is not required, the Court is also of the view that the language must be sufficiently clear so that the Court can safely infer that the provisions of s 473DD(b)(i) and (ii) of the Act have been considered prior to finding whether or not there are exceptional circumstances.

  20. The discussion in paragraph 5 of the Authority’s decision as to why the applicant did not raise these claims initially at his SHEV interview, and the fact that no explanation has been provided for the delay in making these claims could be construed as consideration as to whether or not the information could have been provided to the Minister before the decision was made under s 473DD(b)(i) of the Act. It could also be inferred that the Authority’s discussion of whether or not the information is credible personal information which was not previously known satisfies the criterion pursuant to s 473DD(b)(ii) of the Act. However it is less than a tolerably clear. The sentence “nor has any information been provided about who the applicant fears will discriminate and what form any differential treatment will take because of his claimed mental ill health”, could be aided consideration pursuant to s 473DD(b)(ii) of the Act as to whether or not the information is credible. Again, it is not tolerably clear.

  21. In these circumstances, where the Court cannot be reasonably satisfied that the Authority has distinctly turned its mind to each of the provisions of s 473DD(b) of the Act,  the Court is bound to find a jurisdictional error as set out by the High Court in AUS17.

  22. That leaves the Court to consider whether or not the error is material. As pointed out by Counsel for the first respondent, if the error would not have made a difference, then jurisdictional error does not exist. As submitted by Counsel for the first respondent, the Authority clearly took into account the applicant’s fear of harm on account of his identification as a BNP activist in Australia and disregarded this pursuant to s 5J(6) of the Act as it was not satisfied the conduct was engaged in other than for the purpose of strengthening the applicant’s protection claims. The Court is satisfied that this issue was fully considered by the Authority and that the new claim would have made no difference to the overall outcome. Accordingly, in relation to the first claim the error is not material.

  23. In relation to the claim that the applicant would face severe discrimination from his mental state, the lack of any updated information as to his mental condition, together with the fact that he was not undergoing any treatment or taking any prescribed medication by a medical practitioner (see DR paragraph 5) indicates that the Authority did take account of this claim, but rejected it. The Court is not satisfied that the exclusion of the claim at paragraph 5 of the Authority’s decision would have materially affected the outcome of the Authority’s consideration. Accordingly, no jurisdictional error exists.

  24. As the applicant is unrepresented, the Court has perused the decision record of the Authority, however, no unarticulated jurisdictional error is apparent.

    CONCLUSION

  25. The application is dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       9 April 2021

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