ANA18 v Minister for Home Affairs and Anor (No.2)
[2018] FCCA 1373
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANA18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2018] FCCA 1373 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant applicant a Safe Haven Enterprise visa – whether there tolerably arose on the material before the IAA a claim or claims the IAA did not consider – whether the IAA denied applicant procedural fairness – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473DA(1), 473DB, 473DC, 473GA, 473GB |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | ANA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 273 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 May 2018 |
| Date of Last Submission: | 9 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr J Kay-Hoyle |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 273 of 2018
| ANA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Background and claims for protection
The applicant arrived in Australia as an unauthorised maritime arrival on 5 June 2012 and submitted an application for a subclass 866 Permanent Protection visa (Protection visa). In a statutory declaration dated 22 August 2012 that accompanied his Protection visa application (Protection visa Statutory Declaration) the applicant stated his claims for protection as follows:[1]
[1] CB43-48
a)The applicant is Tamil, Hindu, and he was then fifteen years of age.
b)The applicant was born in Udappu in the North Western Province of Sri Lanka. In 2006 the applicant’s parents moved to Trincomalee for work, but the applicant remained in Udappu where he lived with his uncle and grandparents.
c)In about December 2007 the applicant went to a shop with his uncle in Mullathivu to buy a fishing net. The applicant waited outside the shop for his uncle. When the applicant’s uncle came out of the shop, around ten people in plain clothing came to the front of the shop “by Jeep”, shot the applicant’s uncle, and tried to shoot the applicant. The applicant ran to the forest, fell over, and lost his consciousness, but the applicant does not know for how long he was lying there. The applicant is traumatised by this incident, and cannot help crying whenever people ask him about what happened to his uncle.
d)The applicant does not know who killed his uncle, but he thinks it was the Criminal Investigation Department (CID) or the Sri Lankan Police. Before his death some people came in search for the applicant’s uncle. These people spoke Singhalese and their “faces were covered” with only their eyes showing. They spoke to the applicant’s father and neighbours. When the applicant asked his father why these people were asking after the uncle, the applicant’s father said he did not know why, and the applicant’s uncle “looked scared”.
e)The applicant does not know about the problems his uncle had, but he thinks his uncle “had some political problem”. The people who shot his uncle were wearing “tight cloths” which is why the applicant thinks they may have been from the CID.
f)One month after the applicant’s uncle was killed “they” came to ask for the applicant at his parents’ work place in Trincomalee. At that time the applicant was in Trincomalee, but he was in hiding. The applicant then returned to Udappu.
g)Around 2011 “they” continued their search for the applicant in Udappu and Trincomalee. The applicant was scared and was “extremely careful not to be caught”. The applicant does not know who these people were, but he believed they were from the CID because they were “tall and big”, and the neighbours who were asked about the applicant “said they looked like the CID”.
h)The applicant was also constantly harassed and targeted by the Singhalese police officers in his village because he is Tamil. These officers made the applicant go to the shops to get things for them, and they picked on the applicant because he is Tamil. The applicant was beaten by them three times. In 2010 the applicant and his friend were beaten and were told that he could not go to the beach.
i)“Last year” (namely, 2011) the applicant was shopping when two Sri Lankan army officers called him over. The applicant ran away, but the police caught and slapped him and yelled at him. On another occasion, when at a temple festival the applicant asked for water in Tamil, a Singhalese man slapped him and called him a “Tamil dog”.
j)If the applicant is forced to return to Sri Lanka he will be tortured and killed by the CID because of his uncle and his Tamil ethnicity. The applicant also fears the Sri Lankan army, the Sri Lankan police, or the CID, may torture and kill him because they may suspect he is a member of the Liberation Tigers of Tamil Eelam (LTTE).
Before the delegate the applicant claimed that when he regained consciousness in the jungle after his uncle had been killed, he caught the bus to Trincomalee; and on the day his uncle was killed, the men who had killed his uncle came to the applicant’s house and asked the applicant’s parents whether a boy matching the applicant’s description lived there. The applicant said the men came to his house at night and were looking for him.[2]
[2] CB79
On 28 March 2013, after the delegate refused to grant him a Protection visa, the applicant applied for review to the Refugee Review Tribunal (RRT). The applicant provided to the RRT an unsigned statement dated 28 March 2013 (First Statement) in which, after referring to the Protection visa Statutory Declaration, the applicant said he wished to provide some additional information and comments.[3] The applicant said he was “very confused with this process of visa application”, particularly at the interview at the “DIAC” (Department). The applicant said he was asked “so many questions” that he did not know what he was saying, and that the “case worker” was “laughing at what I was saying”. The applicant also said he did not intend to repeat the claims he stated in his Protection visa application; but that he did wish to respond to the delegate’s decision.
[3] CB91-93
Much of what the applicant stated in the First Statement was a response to the delegate’s not accepting what the applicant said about men coming to look for the applicant on the day his uncle was killed.[4] The applicant said it was his “guess” the applicant had been followed; that he did not know for how long he had lost consciousness, but that the persons who came looking for the applicant did so late at night. The applicant also said that he was confused when he stated to the delegate that the men came to his house as well as to the place where “we stored fishing nets and equipment”.[5] The applicant said that, as he had stated to the delegate, “these are two separate places, and on that night, they only came to the place where our parents store our fishing nets and other equipment, not the area that we were living”.[6]
[4] CB79
[5] CB92, [10]
[6] CB92, [10]
The applicant also addressed that part of the delegate’s decision that recorded the applicant saying that the shooting incident with his uncle was no longer a problem.[7] The applicant said he did not say to the delegate that the shooting of his uncle was no longer an issue for the applicant if he returns. He said he did not understand what he was being asked. The applicant said that ‘[t]hey are still looking for me”; that his father told the applicant that “they came looking for me in [Udappu] in the last month of 2012 as well as the beginning of this year”; the applicant is fearful “they will harm me if I go back”; and that, as he had stated previously, the applicant does not know why his uncle was killed, although he believed he was killed because he was suspected to be involved with the LTTE.
[7] CB80
The applicant, through his representative, also made written submissions to the RRT on 15 April 2013[8] and 7 May 2013[9] referring to country information and responding to issues raised by the delegate at the applicant’s interview with the Department. The RRT, however, affirmed the delegate’s decision on 29 January 2014.[10]
[8] CB94-118
[9] CB119-135
[10] CB136-173
Apparently at invitation of the Minister, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV).[11] In his application for a SHEV the applicant relied on his claims for protection stated in the Protection visa Statutory Declaration and in the First Statement.[12] The applicant attended an interview with the Department on 10 October 2017. The applicant then provided a statement dated 16 October 2017 (Second Statement) in which he stated that the statement was made in response to the interview with the delegate on 10 October 2017, and that he continued to rely on the “previous statement I made on 28 March 2013”. [13] The applicant then said:
a)He is very upset that he has been “asked similar questions so many times, and the Department officers nor RRT believed my story” and that “[t]hey do not believe my story, but they keep asking me the same questions” and the applicant “gets confused”. The applicant “gets so nervous at the interview” and “it has been very difficult” for the applicant to re-tell the story again.
b)He is also “nervous” using an interpreter because of his experience at the “previous interviews” and the applicant “gets scared” that some of things that he has said “may not have been fully or accurately interpreted”.
c)He was informed by his father that his uncle was “in fact an LTTE member and held a high position”. The applicant’s father told the applicant this when the applicant was telling his father about the reasons the RRT refused his application. The applicant “did not think of telling this sooner” because “we did not have any documentary evidence about this, and because no one believed what I said anyway”.
d)He fears his “situation in Sri Lanka is even worse now because of the data breach” and the applicant believes that the Sri Lankan government now knows that he has sought asylum in Australia, and they “are even more convinced about my suspected LTTE involvement”. The applicant fears that he will be arrested as soon as he goes back.
e)His grandmother has told him that she has been visited and threatened by the CID who have come in search of the applicant.
[11] CB91-93
[12] CB174
[13] CB217-218
On 22 November 2017 a delegate of the Minister refused to grant the applicant a SHEV;[14] and on 30 November 2017 the matter was referred to the IAA for review.[15] On 21 December 2017 the applicant, through his representative, provided further written submissions which referred to information that was before the delegate, and which referred to and made submissions in relation to the evidence and issues that were before the delegate.[16] The submissions also asked the IAA to call the applicant for an interview if there are any doubts as to his credibility or any aspects of his claims.[17]
[14] CB238-263
[15] CB264-265
[16] CB268-271
[17] CB271
IAA’s reasons
The IAA referred to the applicant’s representative’s request that the IAA call the applicant for an interview if it had any doubts about the applicant’s credibility or any aspects of his claims.[18] The IAA, however, noted there is no statutory entitlement to a hearing or interview; that s.473DB of the Migration Act 1958 (Cth) (Act) provides that, subject to Part 7AA of the Act, the IAA must review decisions on the papers without interviewing the applicant; and that s.473DC provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances.[19] Taking into account the applicant’s having been represented by the same migration agent throughout his Protection visa application and his SHEV application, the IAA said it was satisfied the applicant had been given a number of opportunities to present his claims and evidence, and that he had been given a real and meaningful opportunity to address the issues arising from his claims and previous findings. The IAA, therefore, was not satisfied that an interview was necessary or required; and the IAA conducted this review on the basis of the material given to the IAA by the Secretary and the new information provided by the applicant.[20]
[18] CB277, [8]
[19] CB277, [8]
[20] CB277, [8]
The IAA considered the applicant to have made five claims, namely, claims arising from the shooting of the applicant’s uncle; the data breach while the applicant was in immigration detention; the applicant’s mental health; the applicant’s being a young Tamil and a Hindu; and the applicant’s being a failed asylum seeker having departed Sri Lanka in violation of Sri Lankan law.
Shooting of uncle
The IAA accepted the applicant witnessed the shooting death of his uncle; but it noted that the applicant’s evidence of what happened next is “confused and/or inconsistent”.[21] The IAA was satisfied the RRT hearings and the SHEV interview were conducted with appropriate regard to the applicant’s circumstances as a very young boy who had witnessed a horrific event, and that the applicant’s circumstances and experiences may have affected his ability to recall and his ability to verbalise his memories.[22] The IAA accepted that the core elements of the applicant’s claims remained consistent, and that any implausibility the IAA identified in its reasons likely arose from a combination of age, trauma, and time.[23]
[21] CB280, [14]-[15]
[22] CB280, [15]
[23] CB280, [15]
The IAA accepted the applicant’s uncle may have been a person of interest to unknown persons for unknown reasons, and that he was shot and killed as a result. The IAA did not accept, however, that the perpetrators were from the CID or that the applicant’s uncle was a high-profile member of the LTTE.[24] The IAA relied on the following matters:[25]
a)The IAA considered implausible that if the applicant’s uncle were a high-profile member of the LTTE the authorities would not have attended the uncle’s home and arrested him in Trincomalee.
b)The applicant did not claim any member of the applicant’s uncle’s family in Trincomalee, including the applicant’s father (the uncle’s brother), has ever been arrested, detained, or harassed in any way, or that the family home had been searched because of the applicant’s uncle.
c)The IAA considered implausible that if the applicant’s uncle were a high-profile member of the LTTE the applicant’s father (the uncle’s brother) would have been asked questions by the authorities but not subjected to any other form of investigation or surveillance.
d)The IAA considered it implausible that if the CID were investigating the applicant’s uncle, masked officers would visit the applicant’s family home. Country information before the IAA did not support that CID conducted its investigations in such a manner.
[24] CB281, [18]
[25] CB281, [18]
For these reasons, the IAA was not satisfied the applicant was in the past, or would now be imputed, as a member or supporter of, or as having otherwise been associated with the LTTE because of his presence when his uncle was killed or his association with his uncle.[26]
[26] CB281, [20]
The IAA accepted that, on witnessing his uncle’s killing, the applicant was terrified, the applicant believed he was in danger himself, and that he ran from the scene and hid. The IAA did not accept, however, that the men who shot the applicant’s uncle shot at the applicant or chased him.[27] The IAA found it implausible that the men who shot the applicant’s uncle would also target an 11-year old boy who was not otherwise known to them as being involved in his uncle’s activities.[28]
[27] CB281, [20]
[28] CB281, [20]
The IAA also did not accept that during the night of the day on which the applicant’s uncle was killed persons came looking for the applicant at the place where his parents stored fishing nets and equipment.[29] Nor did the IAA accept that, on his return to Udappu, people were looking for the applicant there because it found it implausible that people who were seeking to harm the applicant would not have been able to locate him.[30]
[29] CB281-282, [21]-[22]
[30] CB282, [24]
The IAA was prepared to accept that, as a young Tamil, the authorities targeted the applicant with harassment, abuse, intimidation, and low-level violence.[31] The IAA was satisfied, however, that such harm was opportunistic and based on the applicant’s age and ethnicity, and that the authorities did not personally target the applicant.[32]
[31] CB282, [24]
[32] CB282, [24]
Given these findings, the IAA did not accept that the Sri Lankan authorities or any other persons or organisations have been searching for the applicant since 2007 and, therefore, it did not accept the applicant’s claims that his father and grandmother have been visited and questioned by the CID or any other organisations or person since his arrival in Australia.[33] The IAA also did not accept the applicant had an adverse profile with Sri Lankan authorities for any reason associated with the applicant’s uncle or the applicant’s uncle’s death, or from any past interactions with the Sri Lankan authorities, and it was therefore satisfied the applicant does not face a real chance of harm for any of these reasons should he return to Sri Lanka.[34]
[33] CB282, [25]
[34] CB282, [26]
Data breach
This claim relates to the “data breach” that occurred in February 2014.[35] The IAA was not satisfied that the data breach creates any basis on which it may be said that there is a real chance that the applicant will face harm from the authorities if he returns to Sri Lanka.[36] The IAA accepted the published information was briefly available online, and that it is possible that the fact the applicant had applied for asylum in Australia and was held in detention could be known to the Sri Lankan authorities.[37] Because it found the applicant is not of any adverse interest to the Sri Lankan authorities for any reason including any real or imputed LTTE association, the IAA did not accept that there is any suspicion that would be depended by his having sought asylum in Sri Australia and/or for having been among the Tamil diaspora.[38] The IAA was satisfied that if the applicant returns to Sri Lanka the applicant will be regarded as a returning asylum seeker with no profile other than having departed Sri Lanka illegally.[39]
[35] The nature of the data breach is sufficiently described in the judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [3]-[16]
[36] CB283, [29]
[37] CB282-283, [27]
[38] CB283, [29]
[39] CB283, [29]
Mental health
The IAA accepted the applicant was assessed in 2013 as having mental health issues. It found, however, that there was no information before it that indicated the applicant had been hospitalised or had been placed on any pharmacological program.[40] Relying on country information the IAA noted that there is no information to indicate that the applicant would be unable to access or that he would be denied access to the Sri Lankan health system and appropriate care and the IAA considered that the applicant being reunited with his family would provide him with a degree of stability and support.[41] The IAA, therefore, was not satisfied the applicant will face a real chance of harm arising from his mental health condition.[42]
[40] CB283, [30]
[41] CB283-284, [31]
[42] CB284, [31]
Tamil Hindu
The IAA considered the applicant to have made a claim based on his being a Tamil male from the North West and a Hindu. The IAA noted that the situation for Tamils in Sri Lanka has significantly improved and continues to do so and that on the material before it there was no indication that the situation was becoming worse for Tamils in any area in Sri Lanka. The IAA was satisfied that the government is taking steps to address past discrimination and violence and that Tamils do not face a real chance of harm on the basis of their ethnicity.[43] Relying on country information, the applicant’s claims and previous findings, the IAA was not satisfied the applicant faces a real chance of harm from the Sri Lankan authorities by reason of his profile.[44]
[43] CB287, [46]
[44] CB287, [48]
Failed asylum seeker and illegal departure
The IAA accepted the applicant might be questioned on his return to Sri Lanka as part of the airport screening process, but found that such a screening process is the same for all persons returning to Sri Lanka and is not impacted by ethnicity.[45]
[45] CB288, [51]
The IAA also accepted that under the Immigrants and Emigrants Act (Sri Lanka) a person who departed Sri Lanka illegally may be arrested and charged;[46] that country information indicated that the illegal departees may be remanded in custody for a short period while waiting to be brought before a magistrate; that when a person pleads guilty they are fined and discharged;[47] and that when a person pleads not guilty they are immediately granted bail on personal surety, though they may be required to have a family member act as a guarantor.[48]
[46] CB289, [54]
[47] CB289, [54]
[48] CB289, [54]
The IAA noted that the applicant claimed that if he were held on remand, his family would be unable to raise the money to provide a personal guarantee for the applicant.[49] The applicant, however, had consistently maintained that his father had paid for his travel to Australia and he had not claimed that his father or his family had suffered financially from doing so. The IAA therefore was not satisfied that any fine imposed or the requirement for any bail, surety or guarantee would cause the applicant economic hardship, or otherwise threaten his capacity to subsist.[50]
[49] CB289, [56]
[50] CB289, [57]
Grounds of application
The application contains the following grounds of application (errors in original):
1.The Immigration Assessment Authority failed to consider and take into account a Relevant Consideration.
PARTICULARS
(i)As a Member of social group Tamil Hindu from Udappu in the North western Province of Sri Lanka.
(ii)Applicant fear persecution from Sri Lanka Government (CID) being targeted as a chief witnesses to his uncle’s death in Sri Lanka.
(iii)The Applicant fear of harm because the Sri lanka government (CID) wanted he to come forward as a witness to his uncle’s death, follow on going investigation and reconciliation for those who lost their life during the civil war, as a chief witnesses to his uncle’s death, the applicant feared to go against the government (CID) and feared from the LTTE groups if he failed to complied. As a result the Applicant cannot express his opinion and he is not safe to go back to Sir Lanka.
2.The Respondents denied the applicant procedural fairness and natural justice
3.Leave to fill amended application with particulars and any supplementary affidavit and any relevant documents
The applicant has not filed any amended application, and he has not filed any affidavit other than the affidavit the applicant filed commencing the proceeding to which he attached a copy of the IAA’s decision record; and the applicant has not filed or adduced any documents. Accordingly, it is necessary that I deal with grounds 1 and 2.
The applicant, who is not legally represented, made no submissions at the hearing before me in support or in relation to any of the grounds stated in the grounds of application.
Ground 1 – general
Ground 1 may be taken to claim that each of the three matters identified in the particulars constituted claims that were before the IAA, but the IAA failed to consider them. Before I consider each of the particulars, it would be appropriate if I set out the relevant principles that should be applied when determining what claims or integers of claims are before the IAA which the IAA is obliged to consider; and I take these principles to be the same as those have been held to apply to the Administrative Appeals Tribunal (Tribunal) when conducting reviews of Part 7-reviewable decisions.[51]
[51] I repeat here what I said in EEI17 v Minister for Immigration & Anor [2018] FCCA 527 at [33] and [34]
The relevant principles are well known, and I need only refer to two authorities. The first is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[52] where the Full Federal Court said:
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[53]
b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[54]
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[55] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[56]
[52] [2004] FCAFC 263
[53] [2004] FCAFC 263, at [60]
[54] [2004] FCAFC 263, at [58]-[59]
[55] [2004] FCAFC 263, at [60]
[56] [2004] FCAFC 263, at [61]
The second case is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[57] where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised[58]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[57] [2004] FCA 1695
[58] [2004] FCA 1695, at [15]
Ground 1 – particular (i)
Particular (i) claims the IAA did not consider whether the applicant would face risk of harm because he is a member of the social group of Tamil Hindus from Udappu in the North-western Province of Sri Lanka. That particular cannot be made out. As I have already noted, one of the claims for protection the IAA considered the applicant had made was based on his being a Tamil male from the North West and a Hindu; and the IAA considered that claim.
Ground 1 – particulars (ii) and (iii)
These particulars are related; and they are premised on the claim that there was before the IAA a claim that the CID would call the applicant as a witness to identify his uncle’s killers. Based on this premise, particular (ii) states there was a claim before the IAA to the effect that the applicant would be at risk of harm from the CID to the extent they might require the applicant to be a witness to the trial of the perpetrators of the applicant’s uncle’s killers; and particular (iii) appears to state there was a claim before the IAA to the effect that if the applicant were to give evidence, as required by the CID, the applicant would be exposed to risk of harm by the LTTE because this would be perceived by the LTTE as part of the process of reconciliation, and the LTTE is opposed to any policy of reconciliation. (I will refer to the claims identified in particulars (ii) and (iii) as the “asserted claims”.)
I have set out in some detail earlier in these reasons the claims the applicant made. It is clear from what I there set out that the applicant (who had the benefit of legal assistance) did not expressly make any claim that on his return to Sri Lanka he will be exposed to risk of harm because the CID will require him to be the chief witness to his uncle’s murder. The applicant’s express claims, based on the killing of his uncle, is that he was exposed to risk of harm by the CID and the Sri Lankan authorities because the applicant believed the perpetrators of the killing were, or at least were associated with, the CID; that the perpetrators killed the applicant’s uncle because the applicant’s uncle was or was perceived to be associated with, or was a high ranking member of, the LTTE; and that the applicant himself would be at risk of harm because the perpetrators themselves attempted to harm the applicant because of his association with his uncle.
The question, then, is whether the asserted claims can be said to arise tolerably clearly from the material itself. I am satisfied they do not arise tolerably clearly or at all from the claims the applicant made and the material that was before the IAA. The essence of the applicant’s express claims was fear of harm from the CID; and that claim was based on the CID having killed the applicant’s uncle, and the applicant’s stated fear that the CID would harm the applicant because of the applicant’s association with the uncle. The asserted claims, however, are, at least to a large extent, inconsistent with that claim. They are premised on the CID now wishing to bring to justice, with the assistance of the applicant, the very people whom the applicant in his express claims believes killed his uncle and whom he fears wish to harm him, those people being in, or associated with, the CID.
Particulars (ii) and (iii) of ground 1 also fail.
Ground 2
This ground baldly states the IAA denied the applicant procedural fairness and natural justice. In the absence of particulars, this ground cannot succeed. In any event, there is nothing in the material before me that suggests the IAA failed to comply with the provisions of Division 3 of Part 7AA of the Act which, as provided for by s.473DA(1), together with s.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.
Conclusion and disposition
The applicant has failed to demonstrate the IAA made any jurisdictional error. I propose, therefore, to order that the application be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 01 June 2018
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