AJG19 v Minister for Immigration
[2020] FCCA 494
•10 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJG19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 494 |
| Catchwords: MIGRATION – Application for an extension of time to commence judicial review proceedings – Protection visa – decision of the Immigration Assessment Authority – short delay – satisfactory explanation – no merit in proposed grounds of review – application for an extension of time dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.5, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 477 |
| Cases cited: CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | AJG19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 29 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 4 March 2020 |
| Date of Last Submission: | 4 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 10 March 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr J Papalia |
| Second Respondent | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for an order under s.477(2) of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 29 of 2019
| AJG19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 23 November 2018.
The IAA affirmed a decision of the first respondent to not grant the applicant a Class XE Subclass 790 Safe Haven Enterprise (Temporary) visa (the “visa”).
The application to this Court was filed 33 days outside the statutory time limit imposed by s.477 of the Migration Act 1958 (Cth) (the “Act”). In order to obtain assistance from this Court, the applicant must obtain an order extending the time in which to bring his application for judicial review. Without such an order, the applicant cannot pursue proceedings in this Court.
Before the Court is the judicial review application dated 30 January 2019, an affidavit of the applicant affirmed 22 January 2019, a Court Book (“CB”) numbering 248 pages (marked as Exhibit 1), correspondence sent to the applicant’s nominated email address attaching the Minister’s written submissions (marked as Exhibit 2) and an outline of written submissions from the Minister dated 7 February 2020.
The applicant appeared before the Court on 10 March 2020 without legal representation. He was assisted by a Hazaraghi interpreter.
On 24 February 2020, the applicant filed an affidavit in which he sought an adjournment for “ill health and severe mental stress and anxiety”. The Minister opposed any adjournment.
At the commencement of the hearing, the Court asked the applicant if he still wished to seek an adjournment. He indicated that he did not. The applicant indicated that he wanted to have a final hearing. The Court advised the applicant that if, at any time, he felt anxious or distressed or unwell, he needed to advise the Court and the Court would accommodate any concerns that might arise. The applicant actively engaged in the proceedings. The Court is satisfied that he was able to meaningfully participate and address the Court.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s submissions. He indicated that he did not have a copy of the Minister’s submissions. The Minister confirmed that a copy of the written submissions had been sent to the applicant at his receiving address (Exhibit 2). The Court accepts that these submissions were, in fact, sent to the applicant. Noting that the applicant did not have the Minister’s submissions with him, however, the Court asked that a hard copy of the written submissions be provided to the applicant for use in Court. Counsel for the Minister was also asked to summarise the Minister’s submissions for the applicant.
Background
The Minister’s written submissions (at [4]-[16]) accurately summarise the factual background to this matter. The Court adopts that summary as its own, with some minor additions, as follows.
The applicant is a Shia Hazara national of the Islamic Republic of Afghanistan (CB 21).
The applicant entered Australia by sea at the Territory of Christmas Island on 19 March 2013 (CB 165). Accordingly, he is an unauthorised maritime arrival.
On 23 March 2013, the applicant was interviewed by an officer of the then Department of Immigration and Citizenship. He had the assistance of an interpreter (CB 1-26).
On 20 June 2016, the applicant was advised that the Minister had exercised the power in s.46A(2) of the Act to allow him to apply for the visa (CB 27-28).
The applicant lodged an application for a protection visa on 8 June 2017. He did so with the assistance of a registered migration agent (CB 32-104).
The delegate accurately summarised the applicant’s claims as follows:
• He is an ethnic Hazara and his religion is Shia Muslim.
• He was born [date omitted] in the village of [omitted] in Malestan District, Ghazni Province, Afghanistan.
• His father undertook a compulsory military job in Afghanistan.
• The Taliban reached Malestan in the year 2000 and Kuchis, who supported the Taliban confiscated his family’s land and cattle. His family felt unsafe and left the area and moved to Pakistan.
• It is unsafe for Hazaras and Shia Muslims in Afghanistan because they are targeted by the Taliban and ISIS.
• He fears that he will be targeted by the Taliban and treated as an infidel – a person who is a spy for westerners because he will be returning to Afghanistan from a western country.
• He cannot relocate to another area of Afghanistan because the risk of harm from the Taliban exists throughout the whole country.
The applicant attended an interview before the Department on 1 January 2018 to give further evidence in relation to his protection claims (CB 140-146). He was accompanied by his registered migration agent and assisted by an interpreter. At the interview, the applicant provided his original taskera and his father’s taskera (with translations) (CB 166). He also provided a document which the applicant said was his father’s military discharge record (without translation) (CB 144-145).
On 24 January 2018, the applicant’s migration agent provided post-interview submissions to the Department (CB 147-159). The submissions provided an explanation for inconsistencies in the applicant’s submissions and country information.
On 7 May 2018, the delegate refused to give the applicant the visa he was seeking (CB 161-190).
On 8 May 2018, the Minister referred the matter to the IAA in accordance with s.473CA of the Act (CB 191).
On 29 May 2018, the applicant provided written submissions and country information to the IAA (CB 208-221).
On 23 November 2018, the IAA affirmed the delegate’s decision (CB 227-243).
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act, which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 17 pages long and 54 paragraphs in length.
The Minister’s submissions (at [22]-[32]) accurately summarise the IAA’s decision. The Court adopts those submissions as its own, with some additions and alterations, as follows.
The IAA confirmed that it had had regard to the material given by the Secretary under s.473CB(1) of the Act and to the new information provided by the applicant (CB 228 at [3]).
The IAA noted that the new country information which had been provided (in a manner contrary to its practice direction), either pre-dated or post-dated the delegate’s decision (CB 228 at [5]-[6]). The IAA found as follows:
a)where the new information pre-dated the delegate’s decision, the IAA concluded that it was not satisfied that this material could not have been provided to the Minister before the decision under review was made or that it was credible personal information. Accordingly, the IAA determined that it could not consider that category of new information (CB 228-229 at [6]-[7]); and
b)where the material post-dated the delegate’s decision, the IAA concluded that there were exceptional circumstances justifying it considering that new information and that it was satisfied that the material could not have been provided to the Minister. Accordingly, the IAA determined that it could consider that new information, and proceeded to do so (CB 229 at [9]).
The IAA accepted the applicant’s identity as a Shi’a Muslim of Hazara ethnicity and that Malistan was his ‘home area’ (CB 230-231 at [13]-[15]).
The IAA found the applicant’s claims that land and cattle were confiscated by the Taliban, the Kuchis or any other groups to be unconvincing. The IAA noted that there were inconsistencies between the entry interview and later evidence provided by the applicant. Further, his evidence was vague and he did not appear to be recalling a genuine personal experience. The IAA did not accept the explanation provided for these inconsistencies and found the applicant’s claim to be fabricated. The IAA did not accept that the applicant’s land or other possessions were confiscated by Kuchis, the Taliban, or any other group in 2000 (CB 231-232 at [16]-[21]).
The IAA found that, based on the country information before it, the chance the applicant would be harmed in Malistan (which is in the western part of Ghazni province and is a Hazara dominated area) due to his ethnicity, religion or any other reason did not rise to a real chance (CB 232-234 at [22]-[30]).
The IAA was not satisfied that the applicant’s level of education, lack of established networks or prolonged absence from Malistan was such that he could not successfully subsist now or in the foreseeable future. The IAA was also not satisfied that it would ‘be presumed that he is back to reclaim his ancestral land’ and that his life would be ‘at risk’ (CB 233-234 at [31]-[32]).
The IAA found that, apart from being a Shi’a Hazara returnee from Australia, the applicant did not hold any other profile affiliated with the government or international community, nor proximity to persons who do hold such a profile (CB 235-236 at [34]-[36]). Further, there was no indication that the applicant would face harm as a former resident of Pakistan (CB 236 at [37]). Ultimately, the IAA found that there was not a real chance of the applicant being targeted by insurgents in Malistan on the basis of his profile (CB 236 at [38]-[39]).
The IAA found that the applicant would likely be returned to Kabul and that, in order to return to his home area, he would need to travel by road (either from Kabul or by travelling by air to Bayman and then road to Malistan). After referring to the relevant country information, the IAA accepted that there were risks to persons who seek to travel on Afghanistan’s roads. However, the IAA found that any chance that the applicant would be targeted during transit to Malistan was remote (CB 236-238 at [41]-[45]).
At [46], the IAA stated as follows:
Although not specifically raised by the applicant, the delegate considered whether he faced harm in Afghanistan due to the general security situation. Country information before me indicates that the population in Afghanistan are exposed to generalised and indiscriminate violence relating to conflict in the country. In terms of the general security situation in Afghanistan, I accept that the government does not exercise uniformly effective control over all parts of the country, particularly in rural areas. While I have accepted there have been security incidents, the evidence before me does not support that the Afghan government or security forces are losing control of Malistan District. While I accept that civilians have been victims of attacks from time to time, taking into account the general security situation in the region, I find the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote. I am also satisfied that any harm the applicant may possibly face in relation to generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the country overall. Accordingly, s.5J(1)(a) and 5J(4)(a) of the Act would also not be satisfied.
Accordingly, the IAA concluded that the applicant did not meet the criteria in s.36(2)(a) of the Act (CB 238 at [38]).
In relation to any complementary protections under s.36(2)(aa) of the Act, the IAA found (based on the same information as assessed above), that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to his home area, there was a real risk that the applicant would suffer significant harm (CB 239 at [51]-[54]).
Proceedings in this Court
By orders of a Registrar of this Court made on 6 March 2019, the applicant was given an opportunity to file an amended application, further affidavit evidence and an outline of submissions. No further materials were provided. The Minister filed written submissions in accordance with those orders.
In his judicial review application dated 30 January 2019, the applicant indicated that he did not require an extension of time in which to commence his proceedings. That was not correct. The judicial review application was, in fact, filed late. However, the applicant did outline three grounds articulating why he believed an extension of time should be granted. Annexure II of the applicant’s affidavit affirmed 22 January 2019 also specified why the applicant believed an extension of time to file the substantive application should be granted.
The Court has proceeded on the basis that the applicant’s statement that he did not require an extension of time was simply a typographical error. The applicant clearly recognised that he required an extension of time and, at the hearing, confirmed that he was seeking an extension of time.
The Court also proceeds on the basis that the applicant has satisfied the requirements of s.477(2)(a) of the Act. It also notes that the applicant has complied with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
The grounds pursuant to which the applicant seeks an extension of time provide as follows:
1. I received the decision late due to a miscommunication made by the persons assisting me
2. I am also weak in the use of English language
3. Due to the Christmas season I was not able to communicate with ease due to postal and other delays
Further, the applicant’s affidavit (affirmed 22 January 2019) relevantly provided:
…
2. In making this decision there was jurisdictional error by the relevant authorities falling to exercise proper jurisdiction and thereby making an error by law.
3. This decision was not conveyed to me due to a miscommunication made by the persons assisting me.
4. I am also weak in the use of the English language.
5. Due these facts stated above I was not able to file papers on time before the relevant court.
6. I am now aware that I had made an error as regards the time limits imposed by the regulations framed for the process of an appeal.
7. I verily believe that I have a good case to seek relief from the Court.
8. I therefore appeal that my papers of appeal be duly accepted due to the reasons stated above.
Noting that the applicant was unrepresented, it was explained to the applicant that he must satisfy the Court that it is in the interests of the administration of justice for the Court to extend time: the Act, s.477(2)(b).
The Court explained that the factors it will consider in this regard are not exhaustive. However, in determining whether it is necessary in the interests of the administration of justice to extend time, the Court will generally look at the following factors:
a)the length of delay and any prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The Court asked the applicant to make submissions on these matters.
The applicant’s submissions in this regard will be referred to where relevant in the consideration that follows.
Again, noting the applicant’s ill health (see [6] above), the Court advised the applicant that if he needed a break or became stressed, he should advise the Court so that the Court could do what it needed to do to assist him.
The Minister opposed the Court granting an extension of time. The Minister submitted that the delay was not insignificant, the explanation was internally inconsistent and lacking in detail and the merits of the substantive application are lacking.
Consideration
Delay and Explanation
The Minister’s written submissions state that the delay here is 69 days. That is incorrect. The delay is, in fact, 33 days.
In the Court’s view, the delay here is not significant.
This weighs in favour of granting the extension of time.
The applicant’s explanation for the delay in filing his application for judicial review appears to be:
a)there was a miscommunication between the applicant and the person assisting him which caused him to receive the IAA’s decision “late”;
b)he did not know, or was not advised, that there was a time limit;
c)he has limited English capabilities;
d)the Christmas period caused him to be unable to communicate with ease; and
e)he was ill and is still seeing his doctors.
The Minister submits that these explanations lack detail. Specifically, it was stressed that the applicant had not indicated when he received the decision, whether he was told of the time limit, when he learned of the time limit and whether he tried to take any steps to get assistance to lodge his application.
The IAA’s decision was provided to the applicant’s representative on 26 November 2018. The applicant is thus deemed to have received it on that date, notwithstanding he may not have actually done so. Despite this, the Court does accept that the applicant was not immediately provided the decision. This provides some explanation for the delay in question.
While the applicant says that he was not aware of the time limit and he has poor English, in circumstances where the information sheet provided information relating to the time limit and referred to a phone number for translation and interpreter services, the Court only gives these matters limited weight.
The applicant says that the Christmas period caused him to experience delays in relation to the post and made it hard for him to communicate. It is unclear how this affected the applicant’s ability to lodge a judicial review application. Furthermore, the time limit is strictly applied.
As for the applicant’s assertion about his health, the medical evidence before the Court shows that the applicant does suffer from ill health. One of his ailments relates to his mental health and general anxiety. The Court does accept that the applicant was “ill” at the relevant time.
Overall, the applicant’s explanation is not entirely adequate. Nonetheless, it is satisfactory.
This too weighs in favour of granting the extension of time to file the application for judicial review.
Prejudice
The Minister conceded that there is no prejudice here that cannot be rectified by a court order as to costs. The Court accepts that this is the case.
This weighs in favour of granting the extension of time within which to file the application for judicial review.
Merits
The decisive factor here will be whether there is merit in the judicial review application.
In this regard, the Court is mindful that the merits of the application should only be considered at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 at [62]-[63].
The applicant’s judicial review application contains three grounds of review as follows (without alteration):
1. Jurisdicational error.
2. Bias based on conscious or unconscious prejudie by ignoring revelent materials.
3. Identifying a wrong issue on a wrong question.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that, in determining whether the substantive application had merit, it needed to look at whether there was an argument that the IAA had engaged in jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he now seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
Against this background, the Court asked the applicant to explain what he thought the IAA “did wrong”.
In effect, the applicant stated that he went to a migration agent and does not believe that the migration agent properly detailed his protection claims to the “Department”. When asked what claims were not recorded or detailed, the applicant indicated that he was referring to his “asylum claims”. The Court will address this issue when assessing ground 1 below.
The applicant also indicated that his entry interview was conducted in difficult circumstances and that he “gave all of the wrong information as he could not think properly and did not have enough time”. The Court notes that the IAA took these matters into account when considering inconsistencies between the entry interview and the applicant’s later evidence (at [19]). The IAA ultimately determined, after listening to the audio of the entry interview, that the applicant was aware of what he had been asked during the entry interview. On the evidence before it, it cannot be said that any error arises in relation to the audio interview.
Ground 1
1.Jurisdicational error.
Ground 1 is a bald assertion of error. It is difficult for the Court (and the Minister) to gage what “error” the applicant believes that the IAA has committed.
Noting that the applicant is unrepresented (and noting the decision of Justice Mortimer in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 that the Court should remain astute and alert to the possibility of error) the Court reviewed the IAA’s decision in detail to determine if there are any errors on the face of the IAA’s decision.
The Court concludes that no errors arise.
Here:
a)the IAA acted in compliance with the procedural fairness obligations under div.3 of pt.7AA. There is nothing to suggest that the IAA was required to exercise the discretion under s.473DC(3) or put any information to the applicant under s.473DE of the Act;
b)the IAA referred to and relied upon the correct principles in relation to the refugee and complementary protection;
c)the IAA’s consideration of the new information provided by the applicant contains no identifiable error. The IAA clearly understood the requirements of s.473DD of the Act and used the language of the statute when considering the new information. While the IAA only focussed on s.473DD(b) in relation to the new information that pre-dated the delegate’s decision, it did not need to consider s.473DD(a) in circumstances where neither limb of s.473DD(b) was met;
d)the IAA’s reasoning was logical and reasonable. The IAA referred to country information sources (including those provided by the applicant) and the applicant’s own evidence as the basis for its conclusions; and
e)the IAA’s reference to inconsistencies and the vague nature of the applicant’s evidence related to matters that the delegate also noted in its decision. The IAA took into account the applicant’s explanation for these inconsistencies and was not satisfied that they were sufficient. It was open to the IAA to make those findings. The reasoning provided was logical and cogent.
As for the applicant’s submission that the migration agent did not properly record his claims, there is nothing in the materials to indicate that this is the case.
In this regard, the Court notes as follows:
a)the applicant attended an interview before the delegate where he was assisted by an interpreter. He could have raised any claims or concerns he had at that time;
b)the applicant was represented by two different migration agents. The applicant’s migration agent before the IAA did not state that any claims were overlooked or raise any new claims as a result of the previous agent’s error. There is nothing to indicate that either migration agent failed to include a relevant claim in the visa application; and
c)the applicant has not claimed that the migration agent acted fraudulently. Rather, he suggested that the claims may not have been properly translated. This amounts to negligence – Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501. Any concerns the applicant has with the conduct of his migration agents are best directed to the Office of the Migration Agents Registration Authority.
Ground 1 has no merit.
Ground 2
2. Bias based on conscious or unconscious prejudie by ignoring revelent materials
In relation to any concerns the applicant might have about bias on the part of the IAA, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven.
To prove bias, it is for the applicant to establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing to suggest that the IAA acted with a closed mind or had a pre-conceived view when assessing the applicant’s claims for protection. The IAA conducted a detailed and analytical assessment of the country information and the applicant’s overall circumstances.
The Court notes the recent decision CNY17 v Minister for Immigration & Border Protection [2019] HCA 50. Having reviewed the materials in the Court Book, there is nothing to suggest that there was any irrelevant material before the IAA that was prejudicial to the applicant. There is nothing in the materials that a fair minded lay observer would consider could consciously, or subconsciously, lead the IAA to be biased.
Insofar as the applicant claims that the IAA ignored relevant material, without more information (which was not forthcoming) the only material that was “ignored” was the new information which pre-dated the delegate’s decision. The IAA correctly identified that this information had to meet the requirements of s.473DD of the Act. The IAA found that the information did not meet those requirements and could not, as a result, be considered. No error arises in this regard.
The Court is otherwise satisfied that the IAA did not “ignore” any relevant material. The IAA assessed and addressed each of the applicant’s claims, referred to the applicant’s evidence in detail and closely analysed the relevant country information.
Ground 2, accordingly, lacks merit.
Ground 3
3. Identifying a wrong issue on a wrong question.
It is unclear what the applicant is alleging here.
The IAA correctly identified and summarised the legislative provisions that were applicable to its determination.
As already noted:
a)the IAA’s reasons and application of s.473DD to the new information was correct; and
b)the IAA used the language of the statutory provisions (namely ss.5J and 36) when determining the risk of the applicant facing harm for the reasons claimed.
The IAA clearly asked itself the “right questions” and the Court cannot identify any “wrong issue” identified by the IAA. The IAA conducted a review as per the requirements of pt.7AA of the Act and correctly applied the legal principles that were applicable to the visa in question.
Ground 3, accordingly, also lacks merit.
Overall, the Court is not satisfied that any of the proposed grounds of the judicial review application have a reasonable prospect of success. The Court is mindful that the applicant is unrepresented and that his English is limited. It bears in mind that any ground of review may not be properly formulated. However, having considered the IAA’s decision for itself, the Court is not satisfied that there is any identifiable error.
The lack of merit in the proposed application weighs against granting an extension of time within which to file the application for judicial review.
Conclusion
In circumstances where the merits of the application are lacking (and notwithstanding that the delay here is only 33 days and the explanation provided by the applicant for that delay is satisfactory), the Court does not consider it to be in the interests of the administration of justice to grant an extension of time.
The application for an extension of time is, accordingly, dismissed.
The Minister also seeks an order amending the name of the first respondent to the current title of “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. An order will be made accordingly.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 10 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Appeal
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