BBD15 v Minister For Immigration and Anor (No.3)

[2016] FCCA 3334

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBD15 v MINISTER FOR IMMIGRATION & ANOR (No.3) [2016] FCCA 3334

Catchwords:
MIGRATION – ITOA assessment – data breach – no protection obligation – no error of law – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 476.

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: BBD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 261 of 2015

Judgment of: Judge Street

Hearing date: 19 and 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Sydney

Delivered on: 20 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr P Herzfeld

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The consolidated application including the original application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 261 of 2015

BBD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an application seeking Constitutional and declaratory relief in respect of an International Treaties Obligations Assessment (“ITOA”) made on 10 June 2015.

The Protection Visa Applications

1. The applicant is a citizen of Nigeria. The applicant arrived in Australia on 31 July 1995 and lodged his first protection visa application on 22 December 1995, which was ultimately refused. The applicant departed Australia subsequent to his initial protection visa application and then, after arriving on a bridging visa, lodged another protection visa application on 15 January 2009. That application was also refused.

2. On 18 September 2012, the applicant lodged a further protection visa application, which was deemed invalid. Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, on 3 July 2013, a decision was taken to treat the applicant’s application made on 18 September 2012 as valid for the purpose of seeking complementary protection.

3. That application was refused by a differently constituted Refugee Review Tribunal (“the Tribunal”) and then remitted for further determination pursuant to consent orders made on 12 November 2014. On 24 March 2015, the second Tribunal affirmed the delegate’s decision.

The Data Breach

1. By letter dated 12 March 2014, the applicant was informed that there had been an unauthorised access to certain information, being the applicant’s name, date of birth, nationality, gender, and details about the applicant’s detention, including when the applicant was detained, the reason, and where. This was identified as an inadvertent disclosure.

2. The letter noted that the information did not include the address or former address, telephone numbers or contact information or “information about protection claims that you or any other person may have made” and did not include any other information such as health information. The letter referred to that the Department would assess the implications for the applicant and provide the applicant with the opportunity to raise concerns.

3. On 17 October 2014, the applicant wrote to the Department in relation to that letter noting that he remained in detention and requesting a copy of the letter that was sent to other detainees in respect of the disclosure.

The ITOA Correspondence

1. On 16 January 2015, the applicant was notified of the commencement of an ITOA. The letter noted that the assessment was to determine whether the applicant’s circumstances engaged Australia’s non-refoulement obligations. The letter expressly referred to the reason that the Department had commenced the ITOA, being that some of the applicant’s personal information was included in a routine report released on the Department’s website. The letter noted that the ITOA would consider Australia’s non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its second optional protocol.

2. The letter referred to the process being one in which new information could be received from the applicant in relation to his change of circumstances and that the process was one where the applicant would be asked to comment on any adverse information which is critical or relevant to the decision and he would be given a reasonable opportunity to respond to that information before the ITOA was finalised.

3. On 19 February 2015, the applicant was sent a letter providing an opportunity to comment on information relevant to the ITOA. The letter explained the purpose of the assessment in relation to the non-refoulement obligations and provided the applicant with an opportunity to respond. The attachment to the letter identified adverse information that would be given consideration in the assessment.

4. The letter made reference to the proceedings commenced by the applicant in relation to the Tribunal’s decision and the claims there made, including the claims relating to the data breach limiting the applicant’s employment opportunities and ability to travel, the applicant’s fear of Boko Haram and other Muslim extremists, the applicant’s fear from the Nigerian authorities due to Australian criminal convictions, the applicant’s fear from the Nigerian community due to Australian criminal convictions, the applicant’s fear by reason of being a failed asylum seeker, and the applicant alleging fear by reason of alleged homosexuality.

5. The document also annexed country information in relation to Boko Haram as well as the risk of harm from Nigerian authorities due to ‘Decree 33’. In that regard, the principle of double jeopardy is prohibited under Nigeria’s constitution; however, there is a law known as Decree 33, which allowed Nigerian nationals who have been convicted of drug offences overseas to be charged with bringing the name of Nigeria into disrepute. There was also reference to country information in respect of sharing of information between foreign and Nigerian authorities as well as information in relation to failed asylum seekers.

6. The applicant responded on 19 February 2015 asking for more time to respond. On 3 March 2015, the applicant provided a detailed response. That response included an email as well as annexures and enclosures. The applicant’s comments constituted 191 paragraphs in a document dated 3 March 2015 as well as a psychologist’s report, who found that the applicant experiences clinically significant symptoms associated with anxiety as well as symptoms associated with depression. The psychologist opined that the applicant’s symptoms were consistent with post-traumatic stress disorder and that the applicant also disclosed symptoms associated with depression.

7. The psychologist opined that the applicant was having severe to moderate distress and difficulty in his overall functioning. The psychologist made reference to the applicant having been incarcerated on three separate occasions and awaiting an asylum claim. Reference is made to the applicant experiencing ongoing worry, PTSD symptoms and associated anxiety as well as depression. The psychologist expressed concern about the applicant’s reported history of suicidal ideation and what were said to be attempts, during states of aggravated distress and that exacerbation of the symptoms are likely to further trigger negative coping responses including suicide ideation. There was a recommendation that the applicant be given ongoing psychological treatment and that this should include focus on strengthening his coping mechanisms and stress reduction strategies.

8. Also included in the material was a letter to a doctor seen by the applicant in 1997 in which the applicant alleges he raised an issue of homosexuality, and a response from the doctor that does not corroborate that assertion.

9. On 6 March 2015, the applicant was sent a further letter inviting a response in respect of adverse information that would be given consideration. The applicant again asked for an extension of time to respond. On 26 March 2015, the applicant provided a further response document. On 27 March 2015 the applicant provided a detailed response.

10. On 29 April 2015, the applicant was sent a further letter inviting comment on information provided. That letter foreshadowed that the assessor may accept the credibility findings and assessment of risk in respect of the identified claims that were there set out and also identified a potential finding that the harm feared by the applicant did not meet the threshold of significant harm, and the applicant was given a further opportunity to comment. On 3 May 2015, the applicant provided a 41-page response.

The ITOA Findings

1. On 10 June 2015, the assessor identified the applicant’s claims and evidence and the procedure that had been followed. The assessor also took into account the applicant’s medical evidence. The assessor identified the comprehensive assessment that had already been made in respect of the complementary protection provisions which the Tribunal found did not engage Australia’s non-refoulement obligations.

2. The assessor identified the outstanding claims as being the applicant’s claimed fear that he would be ostracised or excommunicated from the wider Nigerian community due to the sexual offences he had committed against his daughter, the applicant’s claimed fear that communal knowledge of the sexual offence he committed against his daughter and his Australian criminal convictions would undermine his ability to find employment, the applicant’s claimed fear that foreign governments will refuse to grant him visas to travel due to his criminal convictions, which allegedly will be known due to the website disclosure incident, and the applicant’s claimed fear that he will be unable to obtain appropriate medication and health care for his health issues, including high blood pressure and heart problems for which he takes daily medication, and his mental health.

3. The assessor accepted that the applicant would be shunned but found that that did not amount to serious harm and, further, found the applicant would not be completely isolated from the community. The assessor made reference to the applicant’s past resilience in Australia following his fraud convictions and the fact that he would be returning to a large city which will have the effect of moderating the impact of the alleged harms. The assessor found that the applicant’s fear of being ostracised and excommunicated by the Nigerian community did not amount to serious harm.

4. The assessor found that the applicant’s fear of suffering limited employment opportunities due to his sexual offences and convictions did not amount to serious harm as defined by s.91R(2) of the Act.

5. The assessor accepted that the applicant may be denied visas from foreign governments but found that this did not amount to significant harm. The assessor found that the applicant being denied a visa for travel overseas from Nigeria did not itself amount to serious or significant harm as defined under s.91R(2) of the Act.

6. The assessor made reference to the applicant’s alleged inability to access proper medical treatment and medication. The assessor acknowledged that the health care access was poor but that there is no information to indicate that the health care is denied in a systemic or discriminatory fashion. The assessor was not satisfied that the standard of health care in Nigeria engaged Australia’s non-refoulement obligations under the Refugees Convention.

7. The assessor found the reasons of the Tribunal in relation to rejecting the applicant’s claims for complementary protection to be correct. The assessor was not satisfied that the applicant has a real chance of being subject to significant harm should he be returned to Nigeria. The assessor was not satisfied Australia has non-refoulement obligations under any of the complementary protection provisions to the applicant. The assessor found that the applicant’s claims were either not credible or were ones where the risk was assessed as being less than a real chance. The assessor concluded that Australia does not have any non-refoulement obligations to the applicant under the Refugees Convention.

8. The assessor dismissed the totality of the applicant’s claims subject to a further assessment of three claims, the first being the applicant’s claimed fear that he be ostracised and/or excommunicated from his own and the wider Nigerian community due to the sexual offences he committed against his daughter, the second being the applicant’s fears that communal knowledge of the sexual offences committed against his daughter and his Australian criminal convictions will undermine his ability to find employment, and the third being the applicant’s fear that foreign governments will refuse to grant him visas to travel due to his criminal convictions, which will be known due to the website disclosure incident.

9. The assessor found that the harms feared are not serious harms and found that the feared harm did not amount to persecution. The assessor was not satisfied that the applicant’s claimed fears of persecution were well-founded. The assessor found that Australia does not have non-refoulement obligations to the applicant. The assessor was not satisfied the applicant is a person in respect of whom Australia has protection obligations. The assessor also found that the harm claimed by the applicant is not significant harm pursuant to s.36(2A) of the Act. The assessor concluded that Australia does not have a non-refoulement obligation to the applicant.

Proceedings before this Court

Background

1. On 14 October 2015, this Court made orders for the concurrent hearing of the proceedings commenced in the Federal Circuit Court of Australia in respect of the Tribunal decision as well as these proceedings in relation to the ITOA decision as well as other proceedings primarily seeking injunctive relief in respect of the applicant not being returned to Christmas Island.

2. Orders were made by the Court on more than one occasion providing the applicant with an opportunity to file an amended application as well as affidavit evidence and submissions. The applicant took advantage of those opportunities and has filed a consolidated application for relief identifying the following grounds, omitting the particulars:-

   1. The Minister erred for his failure to make a specific findings of fact as the fact is, had the Minister made that finding he would have found that I am a person to whom Australia owes Non- refoulement obligations as I would suffer significant harm should I be returned to Nigeria as I will face the death penalty for treason for harbouring, keeping and aiding and helping the coup plotters to escape and flee Nigeria and that this has become known by the authorities and government in Nigeria.

   2. Procedures required by the Migration Act (the Act) or the Regulations to be observed in connection with the making of the decision were not observed by the Tribunal in that the Tribunal failed to find that I was entitled to Complementary Protection visa on account of my claims for harbouring and keeping the coup plotters in my home for 3 weeks and aiding and helping them to escape and flee Nigeria and that this has become known to and by the government and it is Treason punishable by Death or the death penalty and this failure amounts to and vitiated the Tribunal's decision for jurisdictional error.

   3. The Minister committed a particular error in reasoning and reasoned illogically and irrationally in refusing and failing to contact Mr Arnaud Pascoua stating that : The claimant requested I contact Mr Arnaud Pascoua, the SERCO staff member, to confirm the authenticity of the submitted letter; however I do not consider this to necessary given the numerous inconsistencies and irregularities already noted above” that my visits where cancelled as a result of intelligence received by the first respondent and its agents Serco which was communicated to me by the operations manager Mr Arnaud Pascoua that there was very credible and imminent threats to my life from external and internal involving Nigerians in regards to the sex convictions and that I should move to another dorm and later to another facility and fact the Minister gave excessive and great weight to the fact that my refusal to move meant that I had no fear of significant harm from Nigerians or any one in regards to my claims of the sex convictions and my sexuality undermining the fact that the intelligence regarding threats to my life and safety were authored and detected by the first respondent's and its agents Serco and other stake holders give rise to the fact the Minister reached a state of satisfaction that no rational or logical decision maker could arrive at on the same evidence that was before the Minister.

   4. The Minister decision is vitiated by jurisdictional in that the Minister failed to and refused make make obvious inquiry that could have been been made easily by the Minister which might and that could have a determinative effect and impact and that failure did have a determinative effect and impact on the decision given the issues with credibility, and to assertain the real author and writer of the document of November 2012 before making such erroneous findings and conclusions

   5. The Minister failed make obvious inquiries and failed to give genuine consideration to and dismissed without any rational justification, or evidence from a pathological medical independent expert report or examination my claims regarding the scars on my body before he concluded and found that: “further, I do not consider [the applicant’s] request for a referral to a further medical expert would in any way resolve the cause of his scars.

   6. The decision of the Minister is void and affected by jurisdictional error for reasonable apprehension of bias. In that the Minister's delegate did not bring an open and impartial mind to determine the questions whether Australia had non-refoulment obligation to me in the process called the International Treaties Obligation Assessment (ITOA), when that assessment was done by officers of the Department who have been instructed only to accept that the authorities in my home country may have accessed the information in the unauthorised disclosure of my personal details and information to the world by the Department without the Minister or the Department asking or infarct allowing the ITOA assessment to be determined by an independent person or company like it did with the investigation with the release of the information by KPMG.

   7. Further, I rely on all the grounds outlined in my original application that was filed on 17 June 2015.

   (All errors in the original)

3. The last ground in the application refers to the grounds filed on 17 June 2015 and does not reflect the intention of the orders made by the Court in providing the applicant with an opportunity to file a consolidated amended application. However, for the purpose of dealing also with the original application, omitting the particulars, the grounds are as follows:-

   1. The conduct referred to in the first decision would place Australia in breach of its International Obligations.

   2. The assessment was made in a way that denied me procedural fairness in that I was not given any opportunity to:

   -  be heard in person in an interview.

   The ITOA rejected my claims on the basis and grounds that there is either no new information or evidence to that that was before the Tribunal of 24 March 2015.

   3. The Minister failed to consider my circumstances individually or in a transparent manner, but dealt with all of the individuals who were affected by the data breach by applying a “normal process” which was the same for all.

   The ITOA misconstrued sections 91R(1)(2), 36(A) and 36(2A)(aa) of the Migration Act 1958 (the Act), in that the Minister having found that I am member of a particular social group in regards to the Taboo and fear as to what I will suffer decided that I am not a person who is need of Australia's protection and non-refoulement obligations in breach of section 36(2A), 36(2A)(aa) and 91R(1)(2) of the Act as what amounts to serious and significant harm both under the Refugees Convention and the Complementary protection.

   4. The ITOA decision dated 10 June 2015 is legally unreasonable and vitated by and for jurisdictional error in that the Minister's decision is legally unreasonable for the following grounds and basis:

   1. A particular error was committed by the Minister in its reasoning

   2. The Minister gave great and significant weight to a matter (s) of little importance.

   3. The Minister gave little and disappropraite weight to a matter (s) of great importance.

   4. The Minister's reasoning is illogical and irrational, it is “unreasonable, plainly unjust,” and lacks an evident and intelligible justification on the evidence and findings by the Minister.

   5. The Minister failed to act judicially in the ITOA decision dated 10 June 2015 and r was an arbitary and capricious exercise of power by the Minister in that the Minister in the ITOA made findings of fact and the inferences upon which the ITOA was based are unsurported by probative materials and evidence.

   6. The Minister failed in the ITOA to make obvious enquiries regarding critical facts about information that was readly avaliable and failed to ask relevant questions before making the decision as I had requested in my submissions to the Minister that he makes enquiries from both Detentions Operations, the Department and its agent Serco at Villawood IDF in regards to the following:

   1. Inquire from the Department and Detention Operations, and the Security Inteligence and its agent Serco and in particular Mr Arnaud Pascoua, the Operations Manager of its agent Serco who informed me that there is credible inteligence regarding threats to my life from both external and internal from Nigerians regarding the Taboo and that I should move to another Dorm and later to another facility and that my visits have been cancelled immidately from that day and through the weekend and will be reviewed the following week and he wrote the document that both he and myself signed in November 2012 about the reasons for the cancellation of my visits and if there was inteligence received by both Detention Operations and Serco its agents regarding threats to my life with regards to the Taboo from both internal and external threats to my life and in particular the author of the document Mr Amaoud Pascoua the Operations Manager of Serco the Minister and the Department's agent regarding same.

   2. Inquire and refer me to a forensic Pathologists or any other medical expert of his choice to determine whether the scars on my body were caused by the torture and brutality that I suffered and experienced at the hands of the Muslims, the goverment and its security agents and police and the army i Nigeria as I have consistently claimed and which was corroborated and supported by the diagnosis of Dr Michael Lee in his report which was discounted and rejected by the Minister.

   7. The Minister in the ITOA ignored relevant material and failed to consider and take into account relevant considerations and costructively failed to exercise jurisdiction and lacks jurisdiction to make the findings and conclusions in pages 16 to 18 of the ITOA decision because he never confronted the thresh hold and primary questions therby thereby breached the applicable and relevant proceedures prescribed in the Migration Act.

   (All errors in the original)

1. At the commencement of the hearing, the Court explained to the applicant that the proceedings were seeking relief in relation to the ITOA. The Court explained that the relevant issue was whether the ITOA assessment was made contrary to law or contrary to procedural fairness. The Court explained that if satisfied that the ITOA assessment was made unlawfully or unfairly, the Court may grant appropriate relief. The Court explained that the evidence had been identified and admitted as a result of the rulings on 6 December 2016 and that the Court would at the conclusion of submissions in the matter SYG 3004 of 2014, the Court would hear submissions from the applicant, then hear submissions from Counsel for the respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood what had been said by the Court.

Applicant’s submissions

1. The applicant filed written submissions dated 7 December 2016. The written submissions in substance repeat the contents of the applicant’s applications and fail to make out any jurisdictional error. There is an additional issue advanced of a failure by the assessor to grant meaningful extensions of time in response to his requests. That complaint lacks substance. Procedural fairness required that the applicant be given a reasonable opportunity to make submissions. I find the approach adopted by the assessor in the following timetable was reasonable. The timeline for extensions are as follows:-

   By letter dated 19 February 2015 inviting the applicant to comment on various matters, the assessor requested a response within 14 days.

   By email dated 19 February 2015, the applicant requested an extension of time to 30 March 2015.

   By email dated 23 February 2015, the assessor declined that extension “at this point in time”.

   The applicant provided detailed comments by email dated 3 March 201 .

   By letter dated 6 March 2015, the assessor invited further comment, within 14 days.

   By email dated 18 March 2015, the applicant requested an extension of time to 10 April 2015.

   By email dated 18 March 2015, the assessor granted an extension of one week to 27 March 2015.

   The applicant provided a detailed response by 27 March 2015.

   By letter dated 29 April 2015, the assessor invited further comment, within 14 days.

   59.10. The applicant did not request any extension of time and provided a detailed response on 18 May 2015.

2. There is no identified prejudice form the applicant being unable to obtain the further extensions that he sought. At no stage did the applicant miss a deadline imposed or seek to make further submissions after the time had expired. There is no denial of procedural fairness by the assessor in responding to the applicant’s requests for an extension of time.

3. From the bar table, the applicant in substance relied upon his written submissions in support of the consolidated amended application. There is no substance in the applicant’s assertion of error arising from a s.438 certificate issue. There was no evidence of any s.438 certificate in relation to the assessor. The process of the assessor was procedurally fair. Nothing said by the applicant from the bar table or in the applicant’s submissions identified any jurisdictional error.  

Consideration of the consolidated amended application

Ground 1

1. In relation to Ground 1 of the consolidated amended application, the applicant seeks to challenge with the finding of fact that Australia does not owe a non-refoulement obligation to the applicant. The adverse finding of fact by the assessor was open on the material before the assessor. No error of law was made out by Ground 1. Further, on material before the Court, the assessor complied with the obligations of procedural fairness in the conduct of the ITOA assessment. Ground 1 fails to make out any proper basis for relief. The Assessor provided logical reasons in support of the adverse findings. No error has been demonstrated in relation to the logic of the Assessor.

Ground 2

1. In relation to Ground 2, the applicant refers to an alleged aiding by the applicant of plotters in his home country in helping them escape and that he faces alleged punishment for this claim. That was a claim properly assessed and does not give rise to any jurisdictional error.  The assessor was entitled to have regard to the Tribunal’s findings of which the applicant was on notice. The assessor expressly picked up the Tribunal’s findings through a footnote in respect of this claim which was rejected for credibility reasons. The reasons of the assessor did not involve any error of the kind allege. The adverse findings on credibility were the subject of identified inconsistencies on the evidence and the adverse findings as to the applicant’s credit were open.

Ground 3

1. In relation to Ground 3, this is in substance a disagreement with the adverse findings made by the assessor. It was a matter for the assessor to determine what weight to give the material before the assessor. The assessor’s findings cannot be said to be illogical or irrational and cannot be said to lack an evident and intelligible justification. Nothing in the particulars makes out any basis upon which it could be said that the assessor’s determination was contrary to law or that the applicant was denied any procedural fairness in the assessment. Ground 3 fails to make out any error of law or basis for relief.

Ground 4

1. Ground 4 alleges a failure to make an obvious inquiry in respect of easily identifiable information. There is no easily identifiable information in respect of a critical fact identified by the applicant. The applicant’s assertions in relation to his views in respect of his sex convictions are in substance a disagreement with the adverse findings made by the assessor and did not disclose any error of law or any denial of procedural fairness. Ground 4 fails to make out any entitlement to relief.

Ground 5

1. Ground 5 is in substance, a challenge to the adverse findings made by the assessor in relation to the applicant’s medical evidence The adverse findings made by the assessor cannot be said to lack an evident and intelligible justification. It was a matter for the assessor to determine what weight to give the medical evidence. Nothing said in Ground 5 identifies any error of law or any denial of procedural fairness.

Ground 6

1. Ground 6 in substance is an allegation of bias, the basis upon which appears to be the adverse findings by the assessor. The adverse findings by the assessor are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the assessor might not bring an independent and impartial mind to the determination of the matter on its merits. Bias is an allegation that must be clearly alleged and properly proved. No case of bias is made out. Ground 6 fails to make out any error of law or any basis upon which relief should be granted or any denial of procedural fairness.

Ground 7 and the original application  

1. Ground 7 seeks to reintroduce, contrary to the Court’s orders, the earlier application. As the grounds of the earlier application have been set out above, it is appropriate to deal with those grounds which should be numbered.

Consideration of the original application

Ground 1 – Original application

1. The first ground alleges, in substance, that the applicant’s removal will be contrary to Australia’s non-refoulement obligations. Ground 1 is in substance a disagreement with the adverse findings by the assessor. Nothing in the particulars of Ground 1 supports any error of law by the assessor or any denial of procedural fairness that would entitle the applicant to relief. This Court does not have power to revisit the merits of the matter. Ground one fail to make out any error of law in the assessment.

Ground 2 – Original application

1. There is a generalised allegation in Ground 2 that the applicant was denied procedural fairness and not given an opportunity to be heard in the interview. In relation to Ground 2, that the applicant was denied procedural fairness, it is apparent that the assessor gave the applicant an opportunity to respond to the information provided and that the applicant did respond to that information. There was no obligation on the assessor to hear the applicant in person.

2. In Ground 2, the applicant alleges that the assessor rejected the applicant’s claims on the basis that there was no new information or evidence before the Tribunal on 24 March 2015. It is apparent on the material before the Court that the assessor took into account the further information and evidence provided by the applicant in the assessment. It was open to the assessor to find that the new information and evidence did not give rise to a reason for departing from the substance of the findings made by the Tribunal. The applicant has not identified anything that the applicant was unable to raise in writing that could have been addressed at an interview. The assessor’s reasons show that the assessor considered the matters raised for himself and was entitled to have regard to the Tribunal’s reasons. Further, the applicant was informed that the assessor may take into account the Tribunal’s reasons. There is no denial of procedural fairness in this process adopted by the assessor.

3. Ground 2 fails to make out any error of law by the assessor. The contention that it was necessary for the applicant to appear in person is without substance, and it was open to the assessor, having put the applicant on notice, to make findings in respect of the applicant’s credibility, in respect of which the applicant had an opportunity to respond and did respond. Ground 2 fails to make out any error of law or any basis upon which relief should be granted.

Ground 3 – Original application

1. In Ground 3, it is alleged that the Minister failed to consider the applicant’s claims individually or in a transparent manner. The nature of the process was explained in the communications to the applicant, and it is apparent the applicant had a real and equal opportunity to respond to the information provided. On the face of the material, the assessor considered the applicant’s claims, including the consequences of the data breach. Ground 3 fails to make out any error of law by the assessor or any other basis upon which relief should be granted.

2. There is no substance in the assertion of any misconstruction of s.91R of the Act.

Ground 4 – Original application

1. Ground 4 is, in substance, a disagreement with the adverse findings made by the assessor. The assertion by the applicant that the assessor was bound to find that the applicant was a person for whom Australia had a protection obligation is a conclusion that does not identify any error of law by the assessor. Ground 4 fails to make out any error of law or any basis upon which relief should be granted.

2. To the extent there is reference to the Minister making errors, the Court has assumed that they were intended to be references to the assessor, and insofar as errors alleged in respect of the Minister or the assessor,  it is not apparent that there was any particular error committed by the assessor in the ITOA assessment. It was a matter for the assessor to determine what weight to give the material before the assessor. There is no substance in the contention that the assessor’s findings were illogical or irrational. The assessor’s findings cannot be said to lack an evident and intelligible justification.

Ground 5 – Original application

1. In relation to Ground 5 and the assertion that the ITOA assessor failed to act judicially and was arbitrary and capricious, this is, in substance, an allegation of bias. Such an allegation must be clearly alleged and properly proved. No such case of bias is proved. The substance of the allegation appears to be the failure to give credibility to the medical material and the applicant’s scars. This was a matter for the assessor to determine. The adverse findings by the assessor are not conduct by reason of which a fair-minded lay-observer might reasonably apprehend that the assessor might not bring an independent, impartial and fair mind to the determination of the matter on its merits. Ground 5 fails to make out any error of law or any denial of procedural fairness in the conduct of the assessment.

Ground 6 – Original application

1. In relation to Ground 6, there is no obvious inquiry identified in respect of easily ascertainable information in respect of a critical fact. There was no obligation upon the assessor to make any further inquiry. In relation to the applicant’s claims concerning Nigerians and their approach to the Toubou or to make inquiry of a forensic pathologist or medical expert in respect of the applicant’s allegations, Ground 6 fails to make out any error of law. The Tribunal was not bound to make any such inquiry. There is no demonstrated denial of procedural fairness by the assessor. The particulars do not identify any proper basis upon which any error of law could be made out. Ground 6 does not make out any error of law.

Ground 7 – Original application

1. In relation to Ground 7, the assertion that the assessor ignored relevant material and failed to take into account relevant material, no such material is identified. Ground 8 fails to make out any error of law or any denial of procedural fairness.

Conclusion

1. The consolidated amended application, including insofar as it picks up the original application, fails to identify any basis upon which relief should be granted in respect of the ITOA assessment.

2. The consolidated amended application, including the original application, is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 December 2016