AND19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 207

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AND19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 207

File number(s):

ADG 53 of 2019

Judgment of:

JUDGE LUCEV

Date of judgment:

18 February 2025 

Catchwords:

MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Pashto ethnicity – whether failure to have regard to new information – date of publication of decision of Administrative Appeals Tribunal in another matter – whether Administrative Appeals Tribunal decision made before decision of delegate – consistency in administrative decision-making – whether unreasonableness or illogicality or irrationality – whether material jurisdictional error

Legislation:

Migration Act 1958 (Cth) Div 3, Pt 7AA, ss 473CB, 473DD, 473FB, 474, 476

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

Cases cited:

1708572 (Refugee) [2018] AATA 4172

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221

BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401

BUU18 v Minister for Home Affairs [2019] FCA 457

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2029) 373 ALR 196

CAK19 v Minister for Home Affairs [2020] FCCA 1251; (2020) 352 FLR 17

CUH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 46

Ibrahim v Minister for Immigration and Ethnic Affairs [2000] FCA 1309; (2000) 63 ALD 37

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2012) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZZGE v Minister for Home Affairs [2019] FCAFC 72

Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Syed v Minister for Immigration and Border Protection [2017] FCA 887

SZIMP v Minister for Immigration and Citizenship [2009] HCASL 185

SZMIP v Minister for Immigration and Citizenship [2009] FCA 217

Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of last submission/s:

27 July 2023

Date of hearing:

27 July 2023

Place:

Perth

Counsel for the Applicant:

Mr P Jammy

Solicitor for the Applicant:

Lander & Roger Lawyers

Counsel for the First Respondent:

Mr R Harvey

Solicitor for the Respondents:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 53 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AND19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	18 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The originating application filed 13 February 2019 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. Before the Court is an application for judicial review (“Judicial Review Application”) filed on 13 February 2019 by the applicant, AND19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 14 January 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) of 30 October 2018 not to grant AND19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).

2. The matter was docketed to the presently presiding Judge in October 2022 and on 21 November 2022 orders were made programming the matter to hearing, but also providing AND19 with the opportunity to file and serve any amended Judicial Review Application, further affidavits and an outline of submissions. AND19 did not file any amended Judicial Review Application nor any further affidavits but did file a written outline of submissions on 23 June 2023. AND19’s written outline of submissions (“AND19’s Written Submissions”) asserted jurisdictional error in the Authority Decision on the bases set out at [9] below which expanded upon the bare assertion of jurisdictional error in the sole ground of judicial review in the Judicial Review Application. The Minister did not object to the course adopted by AND19 in this regard, and the Minister’s written outline of submissions (“Minister’s Written Submissions”) responded to the assertions made in AND19’s Written Submissions.

3. All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.

   MATERIALS BEFORE THE COURT

4. The Court has before it the following material:

   (a)AND19’s originating application;

   (b)AND19’s affidavit filed 13 February 2019 which does no more than annexe the Authority Decision (“AND19 Affidavit”);

   (c)the Court Book (“CB”) numbering 273 pages which at hearing was marked as Exhibit 1;

   (d)the Authority Decision appearing at CB 255-273,

   (e)AND19’s Written Submissions (filed 23 June 2023);

   (f)the Minister’s Written Submissions (filed 14 July 2023); and

   (g)the transcript of the hearing on 27 July 2023 (“Transcript”).

   BACKGROUND

5. The background to the making of the Tribunal Decision is as follows:

   (a)AND19 is a citizen of Pakistan: CB 62;

   (b)on 7 July 2017 AND19 applied for the SHE Visa: CB 15-64;

   (c)on 2 August 2018 the Department invited AND19 to attend an interview before it on 27 August 2018 (“Delegate Interview”): CB 86-102;

   (d)on 30 October 2018 the Delegate’s Decision was to refuse the SHE Visa: CB 152-176;

   (e)on 2 November 2018 the Authority wrote to AND19 to advise that the Delegate’s Decision had been fast tracked for review by the Authority: CB 177-190;

   (f)on 26 November 2018 AND19’s lawyer made a submission to the Authority (“AND19’s Authority Submissions”): CB 220-226;

   (g)on 18 December 2018 AND19’s lawyer wrote to the Authority attaching a new submission (“AND19’s Further Authority Submissions”) regarding new information provided in AND19’s Authority Submissions, and noting that AND19’s Further Authority Submissions contained additional new information directly relevant to AND19’s matter before the Authority, namely, a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively), being 1708572 (Refugee) [2018] AATA 4172 (10 September 2018): CB 245-249; and

   (h)on 14 January 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 255-273.

   AUTHORITY DECISION

6. In the Authority Decision the Authority:

   (a)noted AND19’s Authority Submissions  and recorded that it had had regard to them: CB 256 at [4];

   (b)noted that AND19’s Authority Submissions:

   (i)referred to country information dated 11 January 2013 from the BBC regarding the profile of the Lashkar-e-Jhangvi (“LeJ”) militant group in Pakistan; and

   (ii)referred to an article dated 18 November 2013 by The Journal regarding the Taliban’s use of threat letters to control rural communities;

   (c)noted the above two articles were not before the Delegate and were new information that pre-dated the Delegate’s Decision by several years, and that there was no explanation about why the two articles could not have been provided to the Delegate before the Delegate’s Decision, and that they appeared to have been provided to respond to credibility concerns raised in the Delegate’s Decision;

   (d)noted that the new information from the BBC purportedly clarified that the LeJ is an offshoot of the Sipah-e-Sahaba Pakistan (“SSP”), and that this perhaps explained why AND19 may have referred to the LeJ and SSP interchangeably at the Delegate Interview and that the information referred to from the two articles is purportedly corroborative of AND19’s claims, but that no extract or copy of the articles was provided;

   (e)considered that there was insufficient context to fully evaluate the two articles and that the country information within the review material indicated that the LeJ is an offshoot of the SSP and thus the content of the BBC article was of “no consequence” and therefore it was not satisfied that there were exceptional circumstances to justify considering the two articles: CB 256 at [5];

   (f)noted AND19’s Authority Submissions also referred to an Express Tribune article dated 13 December 2015 and a Middle East Institute article dated 30 May 2017, but that these two articles were also not before the Delegate and were “new information” and that the articles were said to be relevant because the Delegate had failed to address AND19’s specific claim that being from Parachinar would put him at increased risk when compared to other Pashtuns and because the Delegate’s Decision only gave general information regarding the treatment of all Shias in Pakistan, and that the information directly relates to AND19’s claims and was of high probative value. The Authority noted that there was no extract or copy of the two articles apart from one sentence referring to crimes against Syrian Muslims by Iran and by the Syrian President Bashar al Assad;

   (g)noted that AND19’s Authority Submissions refer to the articles as providing information regarding the geographical location of the Kurram region as bordering Afghanistan and as a frontline of Pakistan’s battle against insurgent groups, as well as to the consequence of people being displaced from the area and that Sunni extremists who were prevented from entering Kurram have relocated elsewhere in Pakistan and that displaced persons from Parachinar and similar regions are at a greater risk due to this historical conflict;

   (h)noted AND19’s Authority Submissions refer to the conflict in Syria and that a number of Shias from the area had gone to fight against Sunni forces in Syria which had increased tensions between Sunni and Shia persons in Kurram and that warnings have been issued to Shias in Parachinar to stop aiding the crimes against Syrian Muslims by Iran and the Syrian President Bashar al Assad;

   (i)noted that the Delegate’s Decision referred to a range of country information sources which provide information about the historical tribal and sectarian violence in Kurram Agency including Parachinar and also included country information about the targeting of Turi/Bangash tribesmen on account of their Shia faith and because some are fighting for the Syrian President Bashar al Assad in Syria: CB 255-256 at [6];

   (j)noted AND19’s Authority Submissions also referred to country information from Relief Web and Dawn from 2010 and 2011 respectively, that these two articles were not before the Delegate and are new information, that AND19’s Authority Submissions extract brief information from the Relief Web article but otherwise does not extract or include a copy of the articles and that therefore it was not possible to sufficiently evaluate the articles, noting that the Relief Web article extract referred to the heightened risk faced by internally displaced Shia from Kurram. The Authority noted that AND19 claimed to have relocated from Parachinar to Rawalpindi for study purposes and, according to AND19’s Authority Submissions, the Dawn article indicates that a number of Parachinar Shias in Rawalpindi have been the victims of targeted kidnappings but that AND19 had not raised any specific claims regarding a fear of being kidnapped in Rawalpindi and that the 2010 and 2011 articles, although they purportedly provide information on the situation of Shias from Kurram or Parachinar during that time period, were of little corroborative value regarding the current situation for those in AND19’s circumstances, considering the seven to eight year (at the time of the Authority Decision) timeframe since their publication;

   (k)noted that all of the above outlined country information pre-dates the Delegate’s Decision and that AND19 was made aware of his responsibility to raise his claims for protection and evidence in support, and that he may not have another chance to do so if the SHE Visa application was refused;

   (l)noted AND19 was represented at the Delegate Interview and that AND19’s Authority Submissions included reference to numerous country information sources and a detailed chronology of events document, but that it was not satisfied there were exceptional circumstances to justify considering the Express Tribune, Middle East Institute, Relief Web or Dawn country information;

   (m)noted that on 18 December 2018 AND19’s Further Authority Submissions including the Tribunal Decision were provided, but that these were provided well outside of the 21 day time limit specified by Practice Direction 1 given under s 473FB of the Migration Act. The Authority also noted no request for any extension of time to provide the Authority with AND19’s Further Authority Submissions and the Tribunal Decision was made and that AND19’s Further Authority Submissions refer to the Tribunal Decision possibly being published sometime in November 2018, or on 8 November 2018, and therefore post-dating the Delegate’s Decision and that the Tribunal Decision thus could not have been provided to the Delegate before the Delegate’s Decision was made. The Authority noted that while this may be, the Tribunal Decision was made on 10 September 2018 and it was not persuaded that it could not have been provided to the Authority within the timeframe specified by Practice Direction 1 and that it did not consider the Tribunal Decision to be relevant because it is not binding authority and the individual facts and circumstances of each case differ. The Authority also noted AND19’s Further Authority Submissions state that it is provided to outline justifications regarding why the Authority should consider the information contained in AND19’s Authority Submissions (emailed to the Authority on 26 November 2018) but that it did not add any substantive justifications; and

   (n)noted that AND19’s Further Authority Submissions provide further, and reiterate previous, legal argument, addresses the Delegate’s Decision and refers again to new information referred to in AND19’s Authority Submissions, and in those circumstances it had not exercised its discretion under s 473B(5) of the Migration Act in favour of accepting AND19’s Further Authority Submissions and the Tribunal Decision.

   JUDICIAL REVIEW APPLICATION – SINGLE GROUND

7. The single ground in the Judicial Review Application is as follows:

   1.The Immigration Assessment Authority made a jurisdictional error in the determination of my case.

   SUBMISSIONS

8. As set out at [2] above the alleged jurisdictional error in the Authority Decision was set out in more detail in the AND19’s Written Submissions and responded to in the Minister’s Written Submissions. The written outlines of submissions were supplemented by oral submissions, and the Court has had regard to both the written and oral submissions (as reflected in the Transcript) for the purposes of preparing these Reasons for Judgment.

   AND19’s Submissions

9. AND19 submitted that:

   (a)the Tribunal Decision could not have been provided to the Authority before the Delegate’s Decision was made on 30 October 2018. The Tribunal Decision was dated 10 September 2018, but was not published until 8 November 2018 on and 26 November 2018 generally by the Tribunal;

   (b)the Authority gave two reasons for not considering AND19’s Further Authority Submissions and the Tribunal Decision:

   (i)first, that they were not provided to the Authority in time and no justification had been provided and no extension of time been sought; and

   (ii)second, that the Tribunal Decision is not relevant because it is not binding and is in any event fact specific: CB 257 at [9];

   (c)section 473FB of the Migration Act deals with the power of the President of the Authority to issue, and the content of, Practice Directions, and that the relevant Practice Directions dealt with the provision of written submissions including that they be provided within 21 days of the matter being referred to the Authority by the Department;

   (d)the Tribunal Decision were provided to the Authority on 18 December 2018, seven weeks after the date of the Delegate’s Decision (on 30 October 2018);

   (e)the Tribunal Decision could not have been provided to the Delegate prior to the Delegate’s Decision, as although the Tribunal Decision was dated 8 September 2018 it appears not to have been available before 8 November 2018, based on:

   (i)the website stating the Tribunal Decision had been updated on 8 November 2018; and

   (ii)the fact that the Tribunal Decision was referred to for the first time in the Tribunal’s discussion of recently published decisions in the Tribunal’s weekly bulletin dated 26 November 2018: CB 247-248;

   (f)the Authority raised no issue with the timing of AND19’S Authority Submissions (received on 26 November 2018 but dated 23 November 2018), but rather AND19’s Further Authority Submissions, provided three weeks later, on 18 December 2018, which did not comply with the Practice Direction;

   (g)the Tribunal Decision seemingly came to the attention of AND19’s then lawyer sometime after it was published in the Tribunal’s bulletin of 26 November 2018;

   (h)the delay between that date and AND19’s Further Authority Submissions does not appear to be excessive;

   (i)whilst the Practice Direction prescribes a 21-day period for submissions, the failure to comply with that period should not automatically result in AND19’s Further Authority Submissions being disregarded;

   (j)although s 473CB of the Migration Act refers to conduct of the Authority, it indicates that it is not intended that the consequence of non-compliance with practice directions would be invalidity. In those circumstances, the consequences of non-compliance by an applicant should be similarly treated: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (“CLV16”) at [42] per Flick, Griffiths and Perry JJ; CAK19 v Minister for Home Affairs [2020] FCCA 1251; (2020) 352 FLR 17 (“CAK19”) at [19] per Judge Reithmuller;

   (k)the Authority recorded that AND19 had explained that the Tribunal Decision had only been published sometime after the date of the Delegate’s Decision and did not reject any aspect of the explanation of the reason for AND19’s delay in this regard (including that the Tribunal Decision was first published by the Tribunal on 26 November 2018);

   (l)this notwithstanding, the Authority then states the Tribunal Decision could nevertheless have been provided to the Authority in accordance with the Practice Direction – in other words within 21 days of the Decision of 30 October 2018, which would have been before 26 November 2018: CB 257 at [9];

   (m)the Authority treated the Practice Direction in a peremptory manner, in conflict with CLV16 and CAK19, with the result that the Authority Decision is affected by jurisdictional error;

   (n)as to the second reason, the Authority’s treatment of the Tribunal Decision was confined to two sentences, which stated: “In any event, I do not consider the [Tribunal] Decision to be relevant. It is not binding authority and the individual facts and circumstances of each case differ”: CB 257 at [9];

   (o)that statement makes it clear that no consideration has been given to the Tribunal Decision and as to whether it is distinguishable from the facts and circumstances of AND19’s case. The Authority’s statement is one of general application and reflects a rejection of consideration of Tribunal decisions as a rule, because firstly they are not binding, and secondly because facts and circumstances differ;

   (p)there is an immediate and obvious shortcoming in this reasoning. The argument that a decision which is not binding must, as a consequence, not be relevant is clearly flawed;

   (q)it is not contested that the individual circumstances of every case differ. But it does not follow that because every case has particular facts, factual findings in one case can never be relevant to the personal circumstances of the applicant in another case;

   (r)that is clearly not the approach that has been taken in the determination of visa applications as a whole. The approach would close the door to the Minister ever considering how persons similarly placed to any specific applicant had been treated;

   (s)country information and other similar reports would become irrelevant. As a statement of general principle, this finding lacks rationality and demonstrates an impermissible reason for the failure to consider information;

   (t)the Tribunal Decision considered and accepted a UNHCR Report which was less than a year old (dated 2017), concerning the risks faced by Shias such as the applicant in many areas of Pakistan, particularly if they reside in known Shia areas and have distinctive names and accents. The UNHCR Report concluded that these Shias would be unable to access effective State protection: CB 248;

   (u)the Tribunal found that Shias would not be able to relocate in Pakistan in a safe or reasonable way: CB 249;

   (v)the Delegate’s Decision was made before the Tribunal Decision. The Tribunal Decision was thus not information that could have been provided to the Delegate before the Decision was made, and the requirement in s 473DD(b)(i) of the Migration Act is thus met;

   (w)the Tribunal Decision dealt with considerations that were of application to AND19 personally. They were considerations which, if known, may have affected the consideration of AND19’s case – satisfying the requirement in s 473DD(b)(ii) of the Migration Act;

   (x)the Authority gave no consideration to whether the explanation provided by AND19 combined with the import of the findings in the Tribunal Decision were sufficient, in the particular circumstances of AND19’s case, to constitute the exceptional circumstances required by s 473DD(a) of the Migration Act;

   (y)the fact that a relevant decision had been published by the Tribunal in the time between the date of the Delegate’s Decision and the proceedings before the Authority, which closely examined circumstances analogous to those facing AND19, was not a situation regularly, routinely or normally encountered – it was something that occasionally, or exceptionally, occurred: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [30] per Gageler, Keane and Nettle JJ; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 (“AQU17”) at [13]-[14] per McKerracher, Murphy and Davies JJ. It was a circumstance which ought to have been considered by the Authority, and the failure to undertake such a consideration led the Authority into jurisdictional error;

   (z)the refusal to consider AND19’s Further Authority Submissions and the Tribunal Decision for the reason that they had been submitted outside of the time period prescribed by the Practice Direction had the effect of elevating the Practice Direction to a pre-emptory provision instead of considering whether the circumstances of this matter justified the non-compliance with the Practice Direction; and

   (aa)the rejection of any possible relevance of the Tribunal Decision, with no considerations of its content or findings, simply because circumstances differ between cases and decisions of the Tribunal set no precedent amounted to a failure to decide whether the content of the Tribunal Decision should be considered as acceptable additional information.

   Minister’s Submissions

1. The Minister submitted that:

   (a)AND19’s submissions are essentially twofold, being:

   (i)a time limit issue being that the Authority erred in treating the Practice Direction in a pre-emptory manner when it refused to accept AND19’s Further Authority Submissions and the Tribunal Decision on the basis that this information was provided outside of the 21-day time limit for making submissions; and

   (ii)a claim of exceptional circumstance, being that the Authority erred because it should have been satisfied that the Tribunal Decision met each of the conditions in s 473DD of the Migration Act for considering new information,

   (b)as to the time limit issue:

   (i)the Authority was entitled to refuse to accept AND19’s Further Authority Submissions and the Tribunal Decision because the Authority’s exercise of its discretion was not exercised unreasonably;

   (ii)AND19’s submission that the Tribunal Decision “was first published by the AAT on 26 November 2018”: AND19’s Written Submissions at [27], appears to be incorrect based on the website record (see hyperlink) and a concession in AND19’s Further Authority Submissions, being “We refer to a recent AAT decision: 1708572 (Refugee) [2018] AATA 4172 (10 September 2018) (published 8 November 2018)” (Minister’s emphasis): CB 247. AND19’s Written Submissions at [19] state that:

   In … [AND19’s Further Authority Submissions] the applicant’s representatives submitted that the AAT Decision could not have been provided to the Delegate prior to the Decision, as although the decision was dated 8 September 2018 it appears not to have been available before 8 November 2018. This was based on:

   a. the record on the website stating the decision had been updated on 8 November 2018; and

   b. the fact that the decision was referred to for the first time in the AAT’s discussion of recently published decisions in its weekly bulletin dated 26 November 2018.

   (iii)there is evidence suggesting that the Tribunal Decision (dated 8 September 2018) was published on 8 November 2018 – 15 days before the expiry of the 21-day time limit – if not 8 September 2018;

   (iv)the Authority was entitled to refuse to accept the AND19’s Further Authority Submissions and Tribunal Decision, pursuant to s 473FB(5) of the Migration Act, for several reasons:

   (A)first, although the Tribunal Decision was published on 8 November 2018 (15 days before the expiry of the 21-day time limit), if not 8 September 2018, AND19 did not request an extension of time to provide the Authority with the Tribunal Decision (or AND19’s Further Authority Submissions) before the end of the 21-day time limit;

   (B)second, AND19 had already provided submissions; namely, the submissions sent on 26 November 2018 (that is, 3 days after the expiry of the 21-day time limit on 23 November 2018), which the Authority ultimately permitted and considered; and

   (C)third, there was no practical unfairness to AND19, since the Authority in fact considered AND19’s Further Authority Submissions and noted at CB 257-258 at [9] that they state that they are:

   provided to outline justifications regarding why the Authority should consider the information contained in the 23 November submission (emailed to the [Authority] on 26 November) but does not add any substantive justifications. The submission provides and reiterates previous legal argument, addresses the delegate’s decision and refers again to new information referred to in the 26 November submission

   (D)AND19’s Further Authority Submissions, apart from including the Tribunal Decision, added nothing substantive and rehashed legal arguments already made, again addressed the Delegate's Decision and referred to the new information in AND19’s Authority Submission sent on 26 November 2018 which the Authority considered; and

   (E)fourth, the Authority did not exercise its discretion unreasonably, having regard to the fact that it was established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) which commenced on 18 April 2015. As the Explanatory Memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (“Explanatory Memorandum”) explained, the legislation created a fast track assessment process for relevant applicants, and:

   introduc[ed] more rapid processing and streamlined review arrangements, creating a different processing model for protection assessments which acknowledges the diverse range of claims from asylum seekers, helping to resolve protection applications more efficiently.

   (c)as to the exceptional circumstances issue, the Authority could not properly be satisfied that the Tribunal Decision was new information which constituted exceptional circumstances under s 473DD(a) of the Migration Act;

   (d)as the High Court explained in Plaintiff M174/2016, “[t]he precondition set out in s 473DD(a) must always be met before the Authority can consider any new information”: at [29] per Gageler, Keane, and Nettle JJ (Minister’s emphasis), and the word “exceptional” in the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act is incapable of exhaustive statement: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”: Plaintiff M174/2016 at [30] per Gageler, Keane, and Nettle JJ;

   (e)the Explanatory Memorandum provides examples of exceptional circumstances, including significant and rapidly deteriorating conditions emerging in the referred applicant's country of claimed protection, such as a change in the political or security landscape including a material change in the applicant’s circumstances: Explanatory Memorandum at [915];

   (f)AND19 submits that s 473DD(a) and (b) of the Migration Act were both satisfied, and that in particular:

   39.The IAA gave no consideration to whether the explanation provided by the applicant combined with the import of the findings in the AAT Decision were sufficient, in the particular circumstances of the applicant’s case, to constitute the exceptional circumstances required by s.473DD(a).

   (g)AND19 submits that the Tribunal Decision constituted “exceptional circumstances”, essentially because it was published after the Delegate’s Decision and “closely examined circumstances analogous to those facing the applicant”: AND19’s Written Submissions at [42];

   (h)in AND19’s Written Submissions at [34]-[35] AND19 highlighted the alleged significance of the Tribunal Decision as follows:

   34.The [Tribunal] Decision considered and accepted a [United Nation High Commissioner for Refugees] Report [UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 1 January 2017. 2017 UNCHR Report] which was less than a year old (dated 2017), concerning the risks faced by Shias such as the applicant in many areas of Pakistan, particularly if they reside in known Shia areas and have distinctive names and accents. The report concluded that these Shias would be unable to access effective State protection.

   35. The AAT found that Shias would not be able to relocate in Pakistan in a safe or reasonable way.

   (i)there were several reasons why the Tribunal Decision did not meet the “precondition” in s 473DD(a) of the Migration Act:

   (i)first, while the Tribunal Decision referred to country information in the 2017 UNHCR Report, AND19 had already provided extensive country information (32 pages’ worth) to the Delegate: CB 115-135 and 137-149. AND19 had also referred the Delegate to:

   (A)an earlier version of the UNHCR Report dated 14 May 2012 (CB 129, ) (“2012 UNHCR Report”); and

   (B)a Tribunal decision from 2013 which accepted the 2012 UNHCR Report and found that “the State of Pakistan at present fails to provide the level of protection that its citizens are entitled to expect according to international standards”: CB 32;

   (ii)second, AND19 has not explained why, despite being aware of the 2012 UNHCR Report, he was not aware of the 2017 UNHCR Report and did not produce it before the Delegate; and

   (iii)third, if it is AND19’s contention that the Tribunal Decision should be accepted, because it made positive findings about the updated 2017 UNHCR Report, the Authority correctly concluded that it was not bound to consider or accept the Tribunal Decision which turned on its own facts, of which the differences were material. The applicant in the Tribunal Decision had left Parachinar for Karachi to study, but then returned to Parachinar. However, AND19 claimed he had relocated from Parachinar to Rawalpindi for study in 2009: CB 260 [17]. Neither the Delegate nor the Authority were satisfied that AND19 would face a real chance of a harm in Islamabad or Rawalpindi should he choose to alternatively return to those areas: CB 171 and 267 at [37], and the Authority was also not satisfied that AND19 would be harmed in Parachinar or Kurram Agency: CB 261 at [31] and 266 at [35].

   CONSIDERATION

   Material jurisdictional error

2. For present purposes it suffices to observe that this Court may set aside the Authority Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2012) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

   Onus

3. It is well established that an applicant for judicial review under s 476 of the Migration Act bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 (“Plaintiff M64/2015”) at [24] per French CJ, Bell, Keane, and Gordon JJ.

   The Practice Direction

4. Section 473FB of the Migration Act provides as follows (emphasis added):

   Practice directions

   (1)The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

   (a)       the operations of the Immigration Assessment Authority; and

   (b)       the conduct of reviews by the Authority.

   (2)       Without limiting subsection (1), the directions may:

   (a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority;

   or

   (b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

   (3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.

   (4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

   (5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

5. The “relevant direction” is the Practice Direction which, at the time, relevantly stated as follows: CB 188 at [21]-[22] (emphasis added):

   21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

   •be no longer than 5 pages;

   •be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and

   •should be provided to us within 21 days of your case being referred to us by the Department.

   22. We may return longer submissions or submissions that do not comply with these requirements. If we return your submissions we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

6. In CLV16 the Full Court of the Federal Court referred to the Practice Direction as providing “guidance”: at [42] per Flick, Griffiths and Perry JJ. The Court held that if non-compliance with the Direction was to be determinative, one would expect the legislation to say so expressly: CLV16 at [44] per Flick, Griffiths and Perry JJ. More recently, in CAK19 at [19] per Judge Riethmuller this Court (then the Federal Circuit Court) held as follows:

   The Practice Direction provides a time frame for submissions and new information of 21 days from the date of the referral of the delegate’s decision to the IAA. However, it does not provide that the IAA cannot receive material outside those time frames, nor proscribe the process with respect to cases that require more than 6 weeks for completion. Obviously the present case is not on the usual pathway within the IAA, as it has been running for nearly 4 years. Regardless of the time that had passed, it was still necessary for the IAA to act in a legally reasonable manner in conducting the review under Part 7AA. This included providing the applicant with a reasonable opportunity to make submissions and provide ‘new information’ for consideration by the IAA.

   Section 473DD of the Migration Act

7. The consideration of new information is governed by s 473DD of the Migration Act, which provides as follows:

   Considering new information in exceptional circumstances

   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.

8. The factual premise underpinning much, if not all, of AND19’s submissions is the date of publication of the Tribunal Decision. AND19 makes various assertions about the date of publication, ultimately to the effect that it could not have been provided to the Authority with AND19’s Authority Submissions on 26 November 2018 because it had not been published until 8 November 2018 at the earliest or 26 November 2018 at the latest.

9. The submission made by AND19 is problematic when it asserts that the Tribunal Decision was not published before:

   (a)8 November 2018 because the version of the Tribunal Decision available on bears the notation “Last updated: 8 November 2018”; and

   (b)possibly, 26 November 2018 because that was when it was published in the Tribunal’s “bulletin”.

10. There is no evidence before the Court to justify either of the above submissions. How, when, and why, updates judgments and decisions, and particularly decisions of the Tribunal, and even more particularly the Tribunal Decision, was the subject of no evidence by, or on behalf of, AND19. Likewise, there was no evidence by, or on behalf of, AND19 as to how and when the Tribunal “bulletin” was published and the relationship between publication dates of the Tribunal’s decisions and the publication date of the Tribunal’s “bulletin”, save for the assertion in AND19’s Further Authority Submissions at CB 247-248 that because the Tribunal “bulletin” ( a copy of which is not in evidence, or in the materials, before the Court) describes itself as a “weekly publication containing information about recently published decisions” (emphasis in AND19’s Further Authority Submissions) the Tribunal Decision must have been published earlier in November 2018, that is earlier than 26 November 2018. That submission makes significant assumptions, and to draw conclusions about the date of publication of the Tribunal Decision based on the above information, and in the absence of evidence as to the specifics of the publication of the “bulletin” in question, would be to engage in pure speculation.

11. The above submissions do not provide a sufficient evidentiary basis for concluding that the Tribunal Decision was published on 8 or 26 November 2018 or on a date between those dates.

12. What is not speculative is that on the first page of the Tribunal Decision the following notations appear:

    Date: 10 September 2018

    and

    Statement made on 10 September 2018 at 10.34am

13. AND19 provided no affidavit evidence as to whether it had examined, or sought to examine, the Tribunal’s records concerning the Tribunal Decision and its mode and date of publication. In that regard the Court notes that there were three orders, one by a Registrar and two by the Court as presently constituted made on 12 April 2019, 21 November 2022 and 8 June 2023 respectively, each of which permitted AND19 to file further affidavits in support of his case. Nor was any subpoena issued to the relevant officer for production of the relevant Tribunal records concerning the Tribunal Decision and its mode and date of publication.

14. It follows from the above that on the best available evidence the Tribunal Decision was published on 10 September 2018, and was therefore information which could have been provided to the Minister prior to the Delegate’s Decision on 30 October 2018. That means that the requirements of s 473DD(b)(i) of the Migration Act were not met in relation to the Tribunal Decision. The Authority Decision was not therefore affected by error in this respect.

15. AND19 also asserts that the Tribunal Decision was credible personal information for the purposes of s 473DD(b)(ii) of the Migration Act.

16. The Tribunal Decision was a decision about a Shia Muslim of Pashtun ethnicity and Turi tribal affiliation from Parachinar who alleged he would be imputed with a political opinion as being opposed to the Taliban by virtue of his Turi tribal affiliation. In AND19’s Further Authority Submissions AND19 sets out various country information referred to in the Tribunal Decision including pre-2018 country information from the UNHCR, the United States Department of State, and the Australian Department of Foreign Affairs and Trade: CB 248-249.  

17. In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 at [75]-[77] per Kenny J the Federal Court observed that:

    75In order to rely on s 473DD(b)(ii), the appellant had to satisfy the IAA that he sought to provide “new information” within the meaning of s 473DC and, amongst other things, that that information was “personal information” for the purposes of s 473DD(b)(ii).

    76It may be accepted that information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual.  Country information may therefore include “personal information” for the purposes of the Migration Act. It does not follow from this, however, that such information (being the particular information about an identified or reasonably identifiable individual) is relevantly “new information” for the purposes of Div 3 of Pt 7AA of the Migration Act. This is because “new information” for the purposes of Div 3 of Pt 7AA is not just information that was not before the Minister or his delegate when the IAA reviewable decision was made, it is also information that the IAA considers potentially relevant to the outcome of its review: see s 473DC(1); Plaintiff M174 at [24].

    77Although country information may include information about an identified or reasonably identifiable individual, the IAA will usually consider this kind of information relevant only in so far as it relates to the conditions in a relevant country at a relevant time. In so far as the country information includes other information, including information about an identifiable individual (other than the referred applicant or perhaps a family member or other relevant connection), it will not be relevant to the IAA’s review. As a consequence, “country information” will be “new information” for the purposes of Div 3 of Pt 7AA (including s 473DD(b)(ii)) only in so far as it relates to the conditions in a country relevant to the review, in the appellant’s case, Sri Lanka. In so far as it relates to an identifiable individual, country information will therefore generally not be “new information” for the purposes of s 473DD(b)(ii) even though it may constitute “personal information” for the purposes of the Migration Act: compare BYA17 at [51] and BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [59].

1. In the circumstances, the Tribunal Decision could not have been new information for the purposes of s 473DD(b)(ii) of the Migration Act as it comprised country information related to an individual other than the referred applicant. Furthermore, that country information was itself not “new information” as it was pre-2018 country information which could have been provided to the Minister prior to the Delegate’s Decision.

2. A further difficulty for AND19 is that whilst uniformity and consistency in decision-making are desirable attributes in the course of administrative decision-making: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325; (1981) 34 ALR 639 (“Nevistic”) , ALR 647 per Deane J; Plaintiff M64/2015 at [54] per French CJ, Bell, Keane and Gordon JJ, they are not required in all circumstances and the Authority was not bound by the Tribunal Decision: Nestivic, ALR 647 per Deane J; SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [27] per Flick J (from which an application for special leave to appeal to the High Court was dismissed: SZIMP v Minister for Immigration and Citizenship [2009] HCASL 185 at [5] per Heydon and Bell JJ), and the only circumstances that the Authority needed to actually consider were those of AND19: Syed v Minister for Immigration and Border Protection [2017] FCA 887 at [26] per Derrington J. Each case must be considered on its own circumstances: Ibrahim v Minister for Immigration and Ethnic Affairs [2000] FCA 1309; (2000) 63 ALD 37 at [15] per Burchett, Goldberg and Finkelstein JJ, and that is what the Authority did in this case.

3. The Court also notes that the circumstances of the applicant in the Tribunal Decision were not, in any event, like with like with AND19, as the applicant in the Tribunal Decision had left Parachinar for Karachi to study, but then returned to Parachinar. AND19, however, claimed he had relocated from Parachinar to Rawalpindi to study in 2009: CB 260 at [17], and neither the Delegate nor the Authority were satisfied that AND19 would face a real chance of a harm in Islamabad or Rawalpindi should he choose to alternatively return to those areas: CB 171 and 267 at [37], and the Authority was also not satisfied that AND19 would be harmed in Parachinar or Kurram Agency: CB 261 at [31] and 266 at [35].

4. The Authority was therefore correct to conclude that it was not bound to consider or accept the Tribunal Decision, which turned on its own facts, and which contained material differences to the facts in relation to AND19.

5. It is also the case that AND19’s Further Authority Submissions do not raise any new issues, but rather re-argue, or further argue, matters addressed in AND19’s Authority Submissions.  In that respect it is not apparent that even if the Authority had had regard to them, either alone or in combination with the Tribunal Decision, that it would have affected consideration of AND19’s claims.

6. Finally, the Court notes that the Authority was not obliged to give comprehensive reasons regarding the exercise of a procedural power under s 473DD(b)(ii) of the Migration Act: BDF17 at [68] per Kenny J; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2029) 373 ALR 196 at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.

7. In all the above circumstances it is not apparent to the Court that the requirements of s 473DD(b)(ii) of the Migration Act were met in relation to AND19’s Further Authority Submissions and the Tribunal Decision, and the Authority Decision was not therefore affected by error in this respect.

   Section 473DD(a) of the Migration Act

8. Given the findings made at [23] and [33] above it may be strictly unnecessary to consider the issue of exceptional circumstances under s 473DD(a) of the Migration Act, but the Court will address it briefly in any event.

9. In Plaintiff M174/2016 at [30] per Gageler, Keane, and Nettle JJ the High Court observed that “[q]uite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.” An exceptional circumstance is one which, while it “need not be unique, or unprecedented, or very rare”, must not be “one that is regularly, or routinely, or normally encountered.”

10. In AQU17 at [13]-[14] per McKerracher, Murphy and Davies JJ the Full Court of the Federal Court held that:

    In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case. … [E]ach case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case.

11. AND19 posited that the circumstances here were unique because the Tribunal Decision had been published after the Delegate’s Decision was made. For reasons set out at [17]-[23] above the Court has found that there is not sufficient evidence to find that the Tribunal Decision had been published after the Delegate’s Decision was made, and therefore the issue does not arise.

    Unreasonableness or irrationality or illogicality

12. AND 19 argued that the Authority acted unreasonably or irrationally or illogically, in the legal sense, when it failed to have regard to AND19’s Further Authority Submissions and the Tribunal Decision.

13. The Authority’s powers under Div 3 of Pt 7AA of the Migration Act are conferred on the implied condition that they are to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”); see also Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ.

14. A decision may be unreasonable if it lacks an evident and intelligible justification: Li at [76] Hayne, Kiefel and Bell JJ. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [21] per Allsop CJ. The decision as a whole must be illogical or unreasonable to constitute jurisdictional error: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465 at [84]-[85] per Besanko, Banks-Smith and Colvin JJ;

15. As to irrationality or illogicality giving rise to jurisdictional error, the Full Court of the Federal Court in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] per Besanko, Farrell and Thawley JJ summarised the principles as follows:

    A decision might be shown to be affected by jurisdictional error if:

    (1)no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

    (2)there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

    (3)there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

16. Further, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 (“ARG15”) at [47] per Griffiths, Perry and Bromwich JJ. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in response to the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”)at [131] per Crennan and Bell JJ.

17. In BUU18 v Minister for Home Affairs [2019] FCA 457 (“BUU18”), the Authority had “considered” but refused an applicant’s request for an extension of time to provide submissions outside of the Practice Direction’s 21 day time limit and the Federal Court at [22] per Perram J noted that:

    … cl 22 appears to contain an assumption that the Authority may extend the 21 day deadline in cl 21. Assuming that an assumption in a clause in a practice direction can be a source of statutory authority, I do not think it can be said that the refusal in this case was unreasonable or irrational in the relevant sense. One can imagine perfectly sensible reasons why a decision maker in the position of the Authority might have refused to extend the time. Consequently, one cannot say that the decision to do so is unreasonable on its face. Nor can I discern in the refusal some process of reasoning which defies comprehension. This argument therefore fails.

18. In CUH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 46 (“CUH21”), this Court agreed at [98] per Judge Kendall with the following submission by the Minister which, having cited BUU18, stated that:

    19.1.The applicant had already been granted additional time to provide information by the Authority […].

    19.2.Section 473FB(5) of the Act states that the Authority is not required to accept new information or documents (such as submissions) from a person if the person fails to comply with a relevant direction that applies to the person. It was well within the area of decisional freedom for the Authority to refuse an extension in the circumstances.

    19.3.The applicant had provided further new information to the Authority (including a statement, supporting statutory declaration and photographs). The applicant had also provided detailed written submissions. That is, the applicant was not deprived of an opportunity to put before the Authority further information.

19. In CUH21 the Court also noted that the applicant there had been given a copy of the Practice Direction, meaning that he was put on notice “that submissions and further material could be provided to the IAA within 21 days of his case being referred to the [second respondent]”: CUH21 at [100] per Judge Kendall.

20. In this case there was no unreasonableness or illogicality because:

    (a)AND19 made AND19’s Authority Submissions within the time prescribed in the Practice Direction, and therefore knew of and took the opportunity to make submissions to the Authority, and was not denied the opportunity to make submissions to the Authority: CUH21 at [98] and [100] per Judge Kendall;

    (b)the Authority was entitled under the Practice Direction to refuse to accept AND19’s Further Authority Submissions and the Tribunal Decision which were made and sent almost seven weeks outside of the 21 day time limit prescribed by the Practice Direction: BUU18 at [22] per Perram J;

    (c)there was no application by AND19 to extend the time limitation for making submissions (in this case further submissions) prescribed by the Practice Direction;

    (d)given that the Court has concluded that there is insufficient evidence to establish the Tribunal Decision was published before the Delegate’s Decision was made the underlying rationale for the alleged unreasonableness or illogicality, and for the failure to file within time, no longer exists; and

    (e)in the above circumstances it cannot be said that:

    (i)no rational decision-maker could not have made the same decision as the Authority with respect to not accepting AND19’s Further Authority Submissions and the Tribunal Decision as new information: SZMDS at [130] per Crennan and Bell JJ; and

    (ii)the decision by the Authority not to accept AND19’s Further Authority Submissions and the Tribunal Decision as new information was not one affected by extreme irrationality or illogicality: ARG15 at [47] per Griffiths, Perry and Bromwich JJ.

21. In the above circumstances, there was no error in the Authority decision on account of unreasonableness, irrationality or illogicality.

    CONCLUSION AND ORDERS

22. The Court has concluded that AND19 has not made out the grounds of the Judicial Review Application and that the Authority Decision is not affected by jurisdictional error by reason of AND19’s sole ground and submissions in support thereof. It follows that there will be an order dismissing the Judicial Review Application filed on 13 February 2019.

23. The Court will hear the parties as to costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       18 February 2025