AMC17 v Minister for Immigration

[2018] FCCA 3128

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3128

Catchwords:
PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.36(2), 47, 65, 473CA, 473CC, 473DA, 473DC, 473GA, 473GB, 476, 477, Div.3 of pt.7AA.

Cases cited:

AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: AMC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 327 of 2017

Judgment of: Judge Manousaridis

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Sydney

Delivered on: 2 November 2018

REPRESENTATION

Solicitors for the applicant Mr R Abbas of R&J Lawyers

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application in a case filed on 8 October 2018 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 327 of 2017

AMC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me is an application in a case filed by the applicant on 8 October 2018 seeking an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that I set aside the orders I made on 22 June 2018 dismissing the proceeding.

2. The proceeding I dismissed was one for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) that the 35-day period prescribed by s.477(1) of the Act for applying for a remedy under s.476 of the Act in relation to a decision of the second respondent (Authority) be extended. The Authority’s decision in relation to which remedy is intended to be sought, if an order under s.477(2) is made, is a decision affirming the decision made by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV). I dismissed the application on 22 June 2018 pursuant to r.13.03C(1)(c) of the FCC Rules because the applicant did not appear at the final hearing of the application.

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

2. Also relevant is what McKerracher J said in AHN17 v Minister for Immigration and Border Protection:[2]

   First, the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant. Secondly, in other cases on the same topic prejudice is not mentioned as a factor:  see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 per North J (at [18]).  Thirdly, prejudice is always relevant when raised, but is never likely to be raised in these cases by the Minister as there will be no immediate prejudice and as a model litigant can be expected to concede this point.  (This was exactly the position discussed in MZYEZ by Ryan J (at [13]).)  Fourthly, the absence of specific reference to delay or prejudice does not mean they were not considered and considered in a manner that was favourable to the applicant.  Fifthly, the key consideration in most, but not necessarily all, of these cases will be the apparent strength of the merits:  is there any point in reinstatement?

   [2] [2018] FCA 1598 at [42]

Reasons for non-appearance

1. The applicant says he did not attend the hearing on 22 June 2018 because he “was not in good health”. The applicant relies on a medical certificate to the effect that the applicant was examined on 25 June 2018, that he was suffering from an upper respiratory tract infection, fever, cough, and sore throat, and that the applicant “will be unfit for work/study up to and including 25/06/29018 to 28/06/2018”.

2. The difficulty with the applicant’s explanation is the hearing the applicant failed to attend was on 22 June 2018, not 25 June 2018. The medical certificate says nothing about the applicant’s medical condition as at 22 June 2018. When I drew this aspect of the evidence to the attention of Ms Abbas, who appeared for the applicant, Mr Abbas obtained instructions from the applicant, who was present in Court, and informed me that his client was “having diarrhoea and vomiting” and, for that reason, was unable to go to the doctor. Mr Abbas also said the applicant had engaged a solicitor to appear at the hearing, but the solicitor did not turn up because the applicant failed to pay the solicitor.

3. I do not accept these explanations. Had the applicant in truth been medically unfit to attend on 22 June 2018 he would have said so in his affidavit; and had the applicant suffered from having diarrhoea and vomiting, it is reasonable to expect the medical certificate would have referred to that condition. I am not satisfied, therefore, the applicant has given an adequate explanation for his not appearing before me on 22 June 2018.

4. I next turn to consider whether, to use the words of McKerracher J in AHN17, there would be any point in reinstating the applicant’s application for an order under s.477(2) of the Act. That requires me to consider whether, if I were to set aside the orders I made on 22 June 2018, the applicant would have reasonably arguable prospects of succeeding in his application for an order under s.477(2) of the Act.

Reasonable prospects of obtaining order under s.477(2) of Act - principles

1. Under s.477(2) of the Act the Court may make an order extending the 35-day period provided for by s.477(1) of the Act if an application has been made to this Court for such order in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such order; and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. When considering that question a number of matters are or may be relevant. These usually include the length of the delay, and the reasons for the delay. The most important matter, at least in most cases, however, is whether the grounds on which an applicant proposes to rely if an order under s.477(2) of the Act is made are “sufficiently arguable to justify the extension of time”.[3]

   [3] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, [47] (Foster J)

Length of and reasons for delay

1. The Authority made its decision on 14 September 2016, but the applicant did not commence this proceeding until 6 February 2017. The applicant, therefore, commenced the proceeding more than three months after the 35-day period expired. That is not an insignificant delay.

2. In the application commencing the proceeding the applicant gave the following explanation for his delay:

   1.  I have no legal representation at the time of the decision was taken by the IAA, I did not understand the details of the IAA decision, moreover I don’t speak, read or understand English, so I did not understand the content of the IAA decision.

   2. I have no financial income apart from the payments that I receive from Centrelink [sic] at that time, I I [sic] was not able afford [sic] to pay for any fees (including legal fees) at that time.

3. In an affidavit sworn by the applicant on 4 February 2018 the applicant stated that:

   a-      I did not have financial capacity

   b-      I was not legally represented

   c- I did not understand what to do after the IAA refused my application as I don’t speak, read or write English.

4. It is not arguable that any of these reasons are adequate reasons for the applicant’s delay. The is no suggestion the applicant was not aware of the Authority’s decision; and there is no evidence about whether the applicant attempted to obtain assistance notwithstanding what I accept are difficulties arising from the absence of legal representation and an inability to understand English. Further, there is nothing to suggest that the matters on which the applicant relies for explaining his delay did not continue to the time he filed the proceeding on 6 February 2017; yet he commenced the proceeding then, but not earlier. There is no explanation why, in those circumstances, he commenced the proceeding on 6 February 2017 rather than within the 35-day period.

Merits of claim

1. I next turn to the merits of the grounds of the application for a remedy under s.476 of the Act, assuming an order under s.477(2) of the Act is made. That requires me to set out the applicant’s claims for protection, and the Authority’s reasons for not accepting them.

The applicant’s claims for protection

1. The applicant arrived in Australia as an unauthorised maritime arrival on 23 August 2012 and in 2013 submitted a purported application for a subclass 866 Permanent Protection visa which was found to be invalid (2013 Protection visa application).[4] On 24 September 2015 the applicant was invited by the Minister to apply for a TPV.[5]

   [4] CB35-82

   [5] CB107-113

2. In a statutory declaration that accompanied his TPV application the applicant made the following claims for protection[6]:

   [6] CB151-153

   a)The applicant is an Iraqi citizen and a Shia Muslim. He was born in Basra, Iraq.

   b)During the Iraqi-Kuwaiti war, the applicant’s father was working in Kuwait and used to visit the applicant and his family in Basra. The applicant’s father went missing during one of his visits.

   c)From the age of ten the applicant took on casual work to support his family, which resulted in the applicant’s having a hard life and fearing he would not survive in Iraq. The applicant fears that he would be killed due to the “current lawless and highly unsafe situation in Iraq”.

   d)The applicant fears being killed by “the Militia” because he refused to join any political party “and especially Hizbullah in basra [sic] area”.

   e)In 2008 and 2010 the applicant sought employment as a security guard with the Iraqi government but was “turned down by the Government due to the fact that [he] did not belong to any Political Group in the Country”. The applicant was told to enrol “as a member Hezbollah before” he could be considered for a position. The applicant “feared being targeted by the opposition” if he “partied with Hezbollah” so he “could not continue with the process”.

   f)In 2009 the applicant was on his way to work and found himself in the area where the Al Mahdi army and the Government confronted each other. The applicant fled to a nearby house until the fighting ceased, and he returned home.

   g)Hezbollah came to the applicant’s house and asked him to join. They told the applicant that, because the applicant is Shiite, it is his religious duty to join them, and that if he refused to join them he would be acting against religion and “they will treat me accordingly”. The applicant refused their offer and fled Iraq. The applicant heard some people were tortured because they refused to join their party.

   h)In 2014 and 2015 Hezbollah came to the applicant’s family home and questioned the applicant’s mother about the applicant. Hezbollah told the applicant’s mother they would kill the applicant because he refused to join them, and they regarded the applicant as a person who acts against the Shiite faith. The applicant’s mother moved to another area but Hezbollah found her again and told her that their fighters are fighting in Iraq and Syria against ISIL and they need new recruits to cover for those who went to fight in Syria against ISIL.

   i)The applicant does not know why Hezbollah picked the applicant but he believes that “they targeted me because I lack any protection from relatives, community or the state, so it was easier for them to single me out”.

   j)The applicant fears for his life should he return to Iraq as he lives in the “constant fear as a Shia Muslim to be targeted by the Sunnis and by the competing Shiite militias such as hezbullah” and the Iraqi government cannot protect him due to the “lawless state” of Iraq.

   k)The applicant’s uncle is a soldier in the Iraqi army in the North and is “always” threatened by the Sunni Muslims due to being a Shia Muslim. The applicant fears expressing his religious or political views as he will suffer persecution by the “Sunni Muslims and the Militia (AL Mahdia Army and hezbullah).”

The Authority’s reasons

1. The Authority did not accept that Hezbollah or anyone else went to the applicant’s house, or approached the applicant or attempted to recruit him; that the applicant is or was of any adverse interest to militia groups for refusing to join them or for any other reason; that the applicant was told that because he was Shiite that it was his religious duty to join and if he does not join, then he acting against religion; or that the applicant’s mother was approached by Hezbollah or any other militia groups in 2014, 2015 or at any other time.[7] The Authority relied on a number of matters:

   a)The Authority was not satisfied country information showed that Kata’ib Hezbollah, or Shiite militias undertake forcible recruitment.[8]

   b)Although it accepted there were some instances of forcible recruitment of children, there was no independent country information that supports the applicant’s claim that Shiite militia groups, including Kata’ib Hezbollah, Hezbollah, or Al Hadi, would attempt to forcibly recruit Shia Muslim adults in the south, or would target those who refused to join them.[9]

   c)At his interview before the delegate, the applicant provided only a general and vague description of the incident, even when asked to describe the incident in as much detail as he could; and that was to be contrasted with the detailed information the applicant gave about background matters.[10]

   d)The applicant did not raise this claim during his bio data or entry interviews or in the 2013 Protection visa application. The Authority accepted the explanations the applicant gave to the delegate for not having made the claims during his bio data and entry interviews, but it did not explain the explanation the applicant gave for not including the claim in his 2013 Protection visa application. The applicant made the 2013 Protection visa application one year after he arrived in Australia, he was then represented by a migration agent, and the claim is significant and central to the applicant’s claims for protection.[11]

   [7] CB216, [25]

   [8] CB214-215, [19]

   [9] CB215, [20]

   [10] CB215, [22]

   [11] CB215, [23], [24]

2. Given these findings the Authority was not satisfied the applicant faces a real chance of being forcibly recruited by Hezbollah, Al Mahdi, or any militia groups if he returns to Iraq, or that he would face a real chance of harm for any reason, including refusing to join any Shiite militia groups, now or in the reasonably foreseeable future.[12]

   [12] CB216, [27]

3. The Authority accepted the applicant was turned down for government jobs in 2008 and 2010, and that the applicant may seek to apply for government jobs on his return to Iraq. The Authority was not satisfied, however, the applicant will face a real chance of harm as a result of the past refusal of employment.[13] But even if he were to be refused government positions in the future, it could be for a variety of reasons, including suitability for the particular role, and the absence of qualifications, and, for that reason, it would be speculative to make a finding about the reasons for any future government refusals.[14]

   [13] CB217, [30]

   [14] CB217, [31]

4. Although it accepted the applicant is a Shia Muslim from Basra, the Authority found there was no independent information to suggest that Shia Muslims are targeted or harmed by Shiite militias in Basra; and for that reason the Authority found the applicant faces no real chance of harm in Basra by Shiite militias, including by Al Mahdi and Hezbollah, for reasons of religion, now or in the reasonably foreseeable future.[15]

   [15] CB217, [33]

5. The Authority accepted that in 2009 the applicant came across an encounter between the Al Mahdi Army and the government. The Authority, however, noted there was no suggestion the applicant suffered any harm from the incident. And although it accepted there are occasional attacks in the southern areas of Iraq, the Shia dominated areas have experienced fewer violent attacks, and Shias in southern Iraq are at a low risk of violence. The Authority concluded, therefore, there is only a remote chance the applicant will be caught up in these incidents.[16]

   [16] CB217, [35]

6. Next, the Authority considered whether the applicant, as a Shia Muslim, faced a real risk of serious harm from Sunni groups. The Authority addressed the claim by referring to country information which the Authority was satisfied showed that Shia Muslim communities in Iraq are subject to general and targeted violence by Sunni-linked insurgent groups and extremists, that Daesh and associated armed groups intentionally and systematically target religious and ethnic minority groups, including Shiites; that although that violence is largely aimed at destabilising the government and communities, rather than individuals, Shia who are members of government security services, senior political or government leadership, detainees or ethnic minorities, also appear to have been specifically targeted by Daesh.[17]

   [17] CB218, [38]

7. In a passage which Ms Abbas submitted discloses jurisdictional error, the Authority said:[18]

   Although Sunni armed groups have increased attacks on a range of targets, where many attacks resulted in mass casualties, DFAT indicates that insurgent activity is highest [in] the northern, western and central provinces, and the level of violence and casualty rate in the southern provinces are much lower.

   [18] CB218, [39]

8. The Authority then noted that although it accepted the Sunni and other associated militant groups are targeting Shia Muslims in areas they control and in Baghdad, Basra in southern Iraq is currently under the control of the Iraqi security forces; the applicant has not claimed he was targeted and harmed by Sunni groups, and he does not fall within the profile of people who are being targeted. On the basis of the country information and the applicant’s profile the Authority concluded it was not satisfied there is a real chance the applicant will be harmed in Basra by Daesh or other Sunni militant groups.[19]

   [19] CB218, [40]

9. Next, the Authority considered whether the applicant faced a real chance of persecution because he would be a failed asylum seeker returning from a western country. The Authority noted this claim was made by the applicant’s representative in the 2013 Protection visa application, but not in the TPV application, but it decided it would nevertheless consider it. The Authority recorded that the applicant’s representative in the 2013 Protection visa application claimed the applicant would be harmed as a returnee or failed asylum seeker from a Western country; that having returned from Australia and residing for a considerable period in a western country, he would be targeted, kidnapped, or harmed for reasons of imputed political opinion as a western sympathiser, and on the basis of perceived wealth, western lifestyle, and behaviours; and that this risk would be heightened because he would also be a failed asylum seeker.[20] The Authority considered these claims against country information which showed that large numbers of people voluntarily returning to Iraq from the United States of America, Western Europe, and Australia take up residence and jobs in Iraq, with their being no suggestion they are not assimilated into the communities; the Iraqi government offered a range of incentives to encourage Iraqis who have not been able to gain asylum overseas to return voluntarily; and many Iraqis who had sought asylum overseas have now returned to southern Iraq and taken up senior and middle level public sector jobs.[21] On the basis of this country information the Authority concluded it was not satisfied the applicant would face a real chance of harm as a returnee, or failed asylum seeker from Australia or a western country.[22]

   [20] CB219, [44]

   [21] CB219, [45]

   [22] CB220, [46]

1. Finally, the Authority considered, but for reasons it is unnecessary to set out in these reasons, was not satisfied the applicant faces a real chance of harm if he were to return to Iraq because of the general and political situation, or sectarian violence, and conflict in Iraq[23]

   [23] CB218-219, [41]-[43]

2. For these reasons the Authority was not satisfied the applicant satisfied the refugee criterion provided for by s36(2)(a) of the Act; and, relying largely on findings it already made, the Authority was also not satisfied the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act.

Proposed grounds of application

1. The application for review contains the following grounds:

   1.  The Immigration Assessment Authority (IAA) based its decision on the entry interview which lacked the procedural elements required in a protection visa application.

   2.  The Immigration Assessment Authority (IAA) failed to take into consideration relevant consideration, while it took irrelevant consideration when it reached its decision.

   3. The Immigration Assessment Authority (IAA) decision was unreasonable.

2. The applicant stated the following grounds in his affidavit sworn 4 February 2018 in which he deposes as follows (errors in original):

   2   That I don’t agree with the IAA decision to refuse my application because the IAA as the IAA relied on the entry interview which clearly lacked any aspect of procedural fairness, I was not made aware at the time of the entry interview that it was designated to take my statement about my circumstances in Iraq.

   3   The IAA failed to take into account relevant consideration represented by my statutory declaration which accompanied my application for temporary protection visa.

   4   The IAA failed to consider my testimony in relation to my claims, instead they relied on an entry interview that was not designed to give protection claims.

3. At the hearing before me Mr Abbas who, as I have already noted, appeared for the applicant, articulated a number of grounds he submitted fell within the grounds stated in the application. I will deal with each of the grounds articulated by Mr Abbas on the assumption that they fall within the grounds stated in the application; and I will proceed on the basis that the grounds Mr Abbas articulated before me constitute the only grounds on which the applicant would rely if I were to set aside my orders of 22 June 2018, and if I were to make an order under s.477(2) of the Act.

4. First, Mr Abbas submitted the Authority made a jurisdictional error because it accepted there was country information that indicated Hezbollah forcibly recruited children under the age of 18 to fight for militias, and there was no independent country information that supports the applicant’s claims that Shiite militia groups forcibly recruit Shia adults in the south, yet the Authority did not consider whether these groups forcibly recruited children under the age of 18 in the south (ground 1). This ground assumes the applicant was a child under the age of 18 at the time the applicant claims Hezbollah came to the applicant’s house and asked him to join. Mr Abbas, however, did not identify the basis on which he claimed the material before the Authority ought to have indicated to it that the applicant was a child under the age of 18 at the time the applicant claims Hezbollah came to his house.

5. It is clear from the material before the Authority that the applicant was born on 22 November 1989.[24] It is not clear when the applicant claimed Hezbollah came to the applicant’s house and asked him to join. The statutory declaration suggests this occurred shortly before he left Iraq in 2012. That is consistent with what the delegate records the applicant said, namely, that “within the following week” of Hezbollah coming to his house the applicant “went into hiding … and began consulting with his friends and making arrangements to leave Iraq for Australia out of fear that he would be harmed or forcibly recruited”.[25] The material before the Authority, therefore, could not reasonably have shown that the applicant was a child under the age of 18 years at the time the applicant claims Hezbollah came to the applicant’s house.

   [24] CB115

   [25] CB194

6. Ground 1, therefore, is not reasonably arguable.

7. Second, Ms Abbas submitted the Authority made a jurisdictional error by relying on the applicant’s not having included in the claims he made in the 2013 Protection visa application the claim he later made that the Hezbollah went to the applicant’s house and sought to recruit him (ground 2). Mr Abbas submitted that s.47 of the Act prevented the Authority from reading the claims the applicant had made in the 2013 Protection visa application. Subsection 47(3) of the Act provides that the Minister “is not to consider an application that is not a valid application”.

8. Ground 2 equates the Authority’s reading of claims made in an invalid protection visa application with the Minister’s considering the 2013 Application for a protection visa of which the claims formed part. That is not arguable. First, the Authority’s reading of the claims cannot reasonably be considered as constituting a consideration of the claim for protection contained in the invalid 2013 Protection visa application. There can be no doubt that the Authority read the claims made in the 2013 Protection visa application for the purpose and in the course of determining the claims the applicant made for a TPV, not in the course or for the purpose of determining the application for a protection visa made in the 2013 Protection visa application. Second, s.47 of the Act is directed to the Minister. The Authority, however, is not the Minister; and s.473CC of the Act – which obliges the Authority to “review a fast track reviewable decision referred to the Authority under section 473CA” - does not purport to confer on the Authority the power the Minister or a delegate of the Minister is required to exercise under s.65 of the Act. The Authority’s power to intervene is limited to setting aside the fast track reviewable decision and making permitted directions or recommendations when remitting the application for reconsideration.

9. Ground 2, therefore, is not reasonably arguable.

10. The third ground Mr Abbas articulated (ground 3) is directed to the passage from the Authority’s reasons for decision I reproduced in paragraph 23 of these reasons. Ms Abbas submitted that the Authority did not ask whether the applicant faced a risk of real harm in Basra; what it considered was whether the risk of harm in Basra was lower than the risk of harm elsewhere in Iraq. In other words, the submission is that the Authority went no further than to assess the relativity of risk of harm between Basra and other regions of Iraq without assessing whether the applicant faced a real risk of harm if he were to return to Basra.

11. Ground 3 is not reasonably arguable. First, the passage from the Authority’s reasons for decision on which Mr Abbas relies goes no further than setting out country information. Second, ground 3 ignores paragraph 40 of the Authority’s reasons that deal with whether the applicant faces a real chance of harm because he is a Shia Muslim. The Authority there refers to Basra currently being under the control of the Iraqi security forces; the applicant’s not having claimed he was targeted and harmed by Sunni groups; and the applicant’s not falling within the profile of people who are being targeted. The Authority concluded that, having regard to country information and the applicant’s profile, it was not satisfied there is a real chance the applicant will be harmed in Basra by Daesh or other Sunni militant groups. There is no doubt, therefore, the Authority asked itself the correct question when assessing whether the applicant faces a real risk of harm if he were to return to Basra from Sunni militants because the applicant is a Shiite.

12. The fourth ground Mr Abbas articulated (ground 4) is that the applicant made a claim that he feared harm as a failed asylum seeker specifically from militant groups such as Hezbollah, but the Authority did not consider that claim. Ms Abbas submitted the Authority assessed the applicant’s claims based on his being a failed asylum seeker from a western country solely on the basis of government policy.

13. Ground 4 is not arguable. Mr Abbas did not submit the applicant made an express claim based on fear of harm specifically from militant groups because he is a returnee; and Mr Abbas did not identify any material that he submitted ought reasonably to have suggested to the Authority that the applicant did make such a claim. I have set out earlier in my reasons the claims the Authority considered based on the applicant’s being a returnee from a western country, and there is no arguable case that anything the Authority identified in its reasons ought reasonably to have suggested to it that the applicant claimed harm specifically from extremist groups like Hezbollah because he would be a returnee from a western country.

14. The fifth ground Mr Abbas articulated (ground 5) is that the Authority failed to accord the applicant procedural fairness. Ms Abbas relied on the Authority not providing to the applicant for his comments country information on which the Authority relied. That ground is not arguable. Under s.473DA(1) of the Act, the provisions contained in Div.3 of Part 7AA of the Act, together with s.473GA and s.473GB, are “taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the” Authority. Under s.473DB the Authority is required to review a fast track reviewable decision referred to it under s.473CA by considering the “review material provided to the Authority under section 473CA . . . without accepting new information; and . . . without interviewing the referred applicant”. It is true that, under s.473DC(1), the Authority is permitted to obtain “new information”, and under s.473DC(3) it can invite the applicant to give “new information” in writing or at an interview. And it is also true that “particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC” of the Act.[26] There is nothing in the material before me, however, and Ms Abbas pointed to none, that could arguably have required the Authority to consider whether it should seek any information from the applicant.

    [26] Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32, at [80]

Conclusion and disposition

1. I have concluded the applicant provided no arguably adequate reasons for his delay in filing the application for a remedy under s.476 of the Act outside the 35-day period prescribed by s.477(1) of the Act, and I have concluded that none of the grounds the applicant proposes to advance if an order under s.477(2) of the Act were made is reasonably arguable. That means I am satisfied that if I were to set aside the orders I made on 22 June 2018 the applicant would have no reasonably arguable prospects of establishing that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act. Given these findings, together with my not being satisfied the applicant has given an adequate explanation for not appearing at the hearing on 22 June 2018, I am not satisfied it is appropriate that I set aside the orders I made on 22 June 2018.

2. I propose, therefore, to order that the application in a case filed on 8 October 2018 be dismissed.

3. At the hearing I heard submissions about costs. Ms Evans, who appeared for the Minister, submitted that if the Minister were to succeed, he would seek an order for costs set in the amount of $900. Ms Abbas said that would be an appropriate order for costs should I order that the application in a case be dismissed. In those circumstances, I also propose to order that the applicant pay the Minister’s costs set in the amount of $900.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 2 November 2018