BHP18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 740

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BHP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 740

File number(s):

SYG 711 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

16 August 2024 

Catchwords:

MIGRATION – Whether Immigration Assessment Authority denied applicant procedural fairness by failing to alert him to potential adverse conclusions available on the material before it and thereafter invite comment

Legislation:

Migration Act 1986 (Cth) ss 476, 473CB, 473DA

Cases cited:

ALR17 v Minister for Immigration and Border Protection [2018] FCCA 3407

ALR17 v Minister for Home Affairs [2019] FCAFC 182

BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29

CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404

DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

DTP17 v Minister for Immigration and Border Protection (2019) 343 FLR 121

DTP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 17

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Division:

General Federal Law

Number of paragraphs:

50

Date of hearing:

22 February 2024 

Place: 

Sydney

The Applicant: 

In person

Solicitor for the Respondents:

Clayton Utz

ORDERS

SYG 711 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BHP18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	16 AUGUST 2024

THE COURT ORDERS THAT:

1.The application filed on 19 March 2018, as amended, is 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 GIVEN:

1. Before the Court is an application made pursuant to s 476 of the Migration Act 1986 (Cth) (Act) by which the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 February 2018, affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Safe Haven Enterprise Visa (visa). 

   BACKGROUND

2. The following background and summary of the Authority’s decision are primarily derived from the written submissions of the first respondent and, unless otherwise indicated, do not appear to be in dispute.  Some parts of the applicant’s claims have been anonymised and/ore made more general so as to limit the possibility that the applicant’s identity might be discernible.

3. The applicant is a Hindu Tamil from the Eastern Province of Sri Lanka (CB 1 to 6).  The applicant arrived in Australia on 7 September 2012 as an unauthorised maritime arrival (Court Book (CB) 46).  On 22 July 2016, the applicant lodged the application for the visa. 

4. The applicant claimed to fear harm as a Tamil from Sri Lanka, stating that the paramilitary Karuna Group has specifically targeted him since 2005 and mistreated his relatives on various occasions, including having abducted and killed the husband (H) and daughter (D) of the applicant’s cousin (C), having threatened the applicant’s mother, and searched for him at various of his relatives’ homes (CB 67 to 71). 

5. The applicant claimed that the Karuna Group will continue to search for him because he witnessed the abduction of H and had defied the Karuna Group (including by ignoring their demands and reporting them) and that the Sri Lankan authorities would not protect him.  In addition, the applicant claimed to fear harm because his family is perceived to be wealthy, as his sisters respectively live in Canada and Australia, and because of the applicant’s job which was in a particularly lucrative industry. 

6. The visa application was refused by the delegate on 14 June 2017 (CB 110). 

7. On 19 June 2017, the delegate’s decision was referred to the Authority for review (CB 132).

8. On 22 February 2018, the Authority affirmed the delegate’s decision (CB 149).

   The Authority’s decision

9. The Authority had regard to the material referred to it by the Secretary of the Department pursuant to s 473CB of the Act, and observed that no further information had been obtained or received by the Authority (CB 150 at [1] and [2]). 

10. The Authority found that the applicant did not satisfy the criteria to engage Australia’s protection obligations under ss 36(2)(a) or (aa) of the Act (CB 161 at [38] and 162 at [44]). 

11. The Authority accepted that the applicant had consistently expressed a fear of being abducted and/or killed by the Karuna Group if he returned to Sri Lanka.  The Authority also accepted that the applicant had consistently made claims regarding the kidnapping of H and D and that he was “fairly credible generally in his overall evidence about his history” (CB 154 at [15]).  While the Authority noted that there was “no corroborative evidence” that the applicant was related to H or D, and expressed some concerns about his claims regarding their kidnappings (CB 154 at [15]), it ultimately accepted that the applicant and C were cousins, that C was married H, and that the applicant supported C after H’s abduction (CB 154 at [15]). 

12. The Authority comprehensively considered the applicant’s claims regarding approaches made by the Karuna Group in the period from 2005 onwards, stating that it:

    (a)accepted the applicant had been approached in 2005 and that, more generally, the Karuna Group put pressure on Tamil civilians in eastern areas during this period to persuade able-bodied persons to join or support them (CB 152 at [11]).  However, the Authority noted that the applicant’s evidence was that the Karuna Group was not aggressive, violent or threatening (only persistent) in 2005 or early 2006 (CB 152 to 153 at [11] to [12]);

    (b)did not accept that the Karuna Group was especially interested in the applicant, or that his departure to Qatar in June 2005 was primarily in order to flee them.  The Authority found it to be equally plausible that the applicant left for better employment opportunities (CB 152 at [11]);

    (c)accepted that the applicant was approached on numerous occasions at different locations in 2006, but did not accept that the approaches were particularly frequent or harassing (CB 153 at [12]);

    (d)accepted that the Karuna Group’s interest in the applicant increased in mid/late 2007 and that the applicant became afraid he would be abducted or killed by the Karuna Group, and for that reason, he left for Malaysia (CB 154 at [17]);

    (e)found the Karuna Group’s interest in him during that period was not related to the abduction of H (CB 155 at [17]).  The Authority specifically noted that the applicant did not describe any specific threats made by the Karuna Group against him and that the accusation was ambiguous (CB 154 at [17]).  Further, the Authority made adverse credibility findings in relation to the applicant’s evidence that it was only he, and not C, who was being pressured by the Karuna Group to stop making enquiries about the abduction of her husband, H;

    (f)accepted that the applicant’s sisters live in Canada and Australia (CB 155 at [18]) and that his mother is now also a resident in Canada (CB 156 at [19]);

    (g)did not accept that the Karuna Group’s interest in the applicant or his mother was connected to H or C.  The Authority found it more plausible that any interest was because he and his mother were each traders in a particular industry and were therefore perceived as being from a family with some wealth (CB 155 to 156 at [18] to [19]);

    (h)placed little weight on the police report upon which the applicant relied because it was “in effect a third-hand unverified statement” (CB 156 at [20]);

    (i)accepted that unknown men attempted to contact the applicant upon his return to Sri Lanka in 2012 and that the applicant then departed soon after to Australia (CB 156 at [21]).  The Authority also accepted that there may have been some attempts made to contact him (CB 156 at [22]);

    (j)did not accept that the attempts to contact the applicant in 2012 were related to the kidnapping of H and D, or to previous extortion attempts.  The Authority also did not accept that these attempts at contact were ongoing or continuous over the subsequent 5 years (CB 156 at [22]); and

    (k)found that it was not plausible that there was any ongoing interest in the applicant from the Sri Lankan authorities in the 5 years since he left Sri Lanka (CB 157 at [22]). 

13. On the basis of the above, the Authority found that although the applicant may have had a genuine fear of the Karuna Group prior to his departure from Sri Lanka, that fear did not remain well-founded in the context of any future return (CB 156 at [23]).  In particular, the Authority had regard to country information (as well as the applicant’s own evidence) about changes in Sri Lanka since 2012 and found that there was not a real chance that the applicant would suffer harm from the Karuna, Pillayan (or any other groups upon his return) (CB 157 at [24]). 

14. The Authority also extensively considered the applicant's claims regarding H and D.  The Authority accepted that H was abducted for ransom in 2007, and is presumed dead.  The Authority was willing to accept that it was likely that the Karuna Group was involved in this abduction (CB 157 at [24] to [25]).  The Authority also accepted that D was kidnapped for ransom in 2009 and murdered.  However, the Authority did not accept that there was a causal relationship between any actions by the applicant or his mother and the events relating to the abduction of D (CB 156 at [21]).  The Authority found that D’s abduction and murder was the result of some unknown personal, financial, or political circumstance relating to C’s family (CB 156 at [21]).

15. Finally, the Authority had regard to whether the applicant would face harm by reason of his status as a Tamil male from the Eastern Province and as a failed Tamil asylum seeker (CB 158 to 161 at [27] to [37] and 162 to 163 at [41] to [43]).  The Authority was not satisfied that there was a real chance that the applicant would face any harm, nor a real risk that he would suffer significant harm, on either of those bases. 

16. In all the circumstances, the Authority was not satisfied that the applicant faced a real chance of harm in Sri Lanka, found that he did not meet the requisite criteria to enliven Australia's protection obligations, and consequently affirmed the delegate's decision. 

    Application to this Court

17. On 19 March 2018, the applicant commenced these proceedings by an application to show cause.  At the time the proceedings were commenced the applicant was unrepresented.  The proceedings were initially docketed to another Judge of the Court (first primary Judge).   By the originating application, the applicant provided a street address and a particular email address (Yahoo address) as being his postal and email addresses for service, respectively. 

18. On 9 April 2018, a Registrar of this Court made orders by consent which provided, inter alia, a grant of leave to the applicant to file and serve any amended application by 4 June 2018 and listed the matter for final hearing on 10 December 2018 before the first primary Judge.  Also at the first Court date on 9 April 2018, the applicant filed a Notice of Address for Service providing a new postal address for service, but the same Yahoo address for service by email.

19. On 19 June 2018, the solicitor for the first respondent sent an email to the Chambers of the first primary Judge attaching proposed consent orders which had been agreed between the parties’ legal representatives, consequent upon the applicant having engaged Counsel on a direct access basis.  On 21 June 2018, the first primary Judge made orders by consent which extended the timetable for the amended application and parties’ evidence. 

20. On 22 June 2018 and 29 June 2019 (respectively), an amended application (Amended Application) and Affidavit (made by the applicant) were filed.

21. On 11 July 2018, the first primary Judge made orders in Chambers vacating the initial hearing date and listing the matter for hearing on 4 February 2019.    

22. The applicant’s written submissions were filed on 17 January 2019. 

23. The first respondent’s written submissions were filed on 25 January 2019.

24. On 29 January 2019, the Associate to the first primary Judge emailed the parties to notify them that, for administrative reasons, the hearing date on 4 February 2019 had been vacated and the matter had been listed for callover before a Registrar on 18 June 2019 to obtain a new hearing date.  On 18 June 2019, orders were made (by consent) that the proceedings adjourn to a date to be notified to the parties administratively. 

25. The proceedings were later placed in the central migration docket.

26. On 17 July 2023, the proceedings were docketed to me, and I made procedural orders for the preparation and listing of the matter for hearing.  In circumstances where the applicant had been represented by Counsel on a direct access basis, the Court sought to confirm with Counsel that representation continued (in order that, if not, an interpreter could be arranged for the applicant).  On 18 July 2023, the Counsel in question confirmed by email that he no longer had instructions in the matter. 

27. The proceedings were listed for hearing on 22 February 2024.  The first respondent filed supplementary written submissions on 15 February 2024.  No further submissions were filed by, or for, the applicant. 

    The hearing

28. On 19 February 2024, I made an order that the parties must appear and make submissions at the final hearing on 22 February 2024 via video link (utilising Microsoft Teams (MS Teams)).  That order was made in the following circumstances.  In the days leading up to the hearing, a solicitor in the employ of the first respondent’s solicitor (and who had day-to-day carriage of the matter) apparently received a number of voicemails and emails from the applicant.  The solicitor for the first respondent wrote to the Court to say that because of the content of those messages, he held personal safety concerns for his employee if the hearing were to take place in person.  In circumstances where subsequent correspondence from the applicant to the Court appeared to not oppose the hearing proceeding in that way, and where I was independently satisfied that a hearing by MS Teams would not prejudice the applicant or compromise the hearing opportunity in any way for either party, I erred on the side of caution and acceded to the request that the hearing take place via videolink.  The Court remains unaware of the content of the messages sent by the applicant, albeit the solicitor for first respondent was prepared to go into evidence about them if required.  The Court has not taken the aforementioned matters into account in reaching the decision recorded by these reasons for judgment. 

29. In accordance with the order of the Court, the parties appeared via MS Teams on 22 February 2024 for hearing.  The applicant was unrepresented.  The first respondent was represented by a solicitor.  An observer from the Asylum Seekers Centre was also present in the MS Teams forum for the applicant.

30. For the reasons discussed at [26] above, the Court arranged for an interpreter to facilitate the hearing. The interpreter was present in the Court room. During the course of the hearing, the MS Teams connection remained clear. There appeared to be no technical difficulties and the parties, the Court and the interpreter did not appear to have any issues in understanding one another.

31. At hearing, the Court Book was tendered and marked Exhibit “1R”.  In support of the originating application an Affidavit of the applicant was filed to which the Court did not have regard because it sought only to annex the Authority’s decision, a copy of which is now included in Exhibit “1R”.  However, the Affidavit made by the applicant on 29 June 2018 was read, without objection.

    Grounds of review

32. The Amended Application upon which the applicant continued to rely, raises one ground of review with particulars as follows (error in original):

    The Fourth Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error.

    Particulars

    i.The Fourth Respondent failed to inform the Applicant of the nature of the material before it.

    ii.The Fourth Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

    iii.The Fourth Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.

    iv.In dealing with the review of the Applicant’s claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias.

33. The ground and particulars were interpreted to the applicant. 

34. The Court indicated to the applicant its understanding of the fact that the ground of review in the Amended Application was drafted for him by his former Counsel, and that it raised a relatively specific and technical legal error.  The Court explained that the ground of review which the Amended Application advanced relied upon a particular case which was, at the time the Amended Application was filed, the subject of a pending appeal to the Full Federal Court.  The Court explained to the applicant that, at a later time, the Full Federal Court determined the appeal in a way that was likely dispositive of the case that was being advanced for him. The applicant was reminded of the limitations of the jurisdiction in judicial review and that the Court was unable to take into account issue of merit.  The applicant was invited to make any submissions he wished in relation to the ground, or in general. 

35. The applicant made submissions at hearing to the following effect:

    (a)he remains in danger in Sri Lanka because the Karuna group is still functioning;

    (b)he has some medical issues which cannot be treated in his home country;

    (c)the applicant suffers from seizures/fits;

    (d)the applicant does not have any support in his home country because all his siblings and relatives have migrated to Canada and he has no friends there either;

    (e)the applicant has previously attempted suicide;

    (f)the applicant was subjected to torture and beaten in his home country;

    (g)he lived in Malaysia for five years, but came to Australia because he did not have work rights in Malaysia; and

    (h)the Authority should have accepted that he cannot return to Sri Lanka.

36. As the first respondent correctly observes, the written submissions filed for the applicant in 2019 make broad legal arguments about the nature of the Pt 7AA review, but do not specifically engage with the applicant’s specific claims, nor the decision of the Authority in the instant case. The first respondent has endeavoured, by his written submissions, to meaningfully distil the applicant’s ground into issues capable of comprehension. It is practical to address the ground by reference to those issues.

1. The written submissions advanced for the applicant (eventually) argue the same error contended for in ALR17 v Minister for Immigration and Border Protection [2018] FCCA 3407 per Judge Jarrett (as his Honour then was).[1]  The applicant in ALR17 was represented by the same Counsel who prepared the Amended Application and written submissions for the applicant in the instant case.  At the time that the Amended Application and (later) written submissions were filed, Judge Jarrett’s decision was the subject of appeal proceedings which had not yet been heard or determined.  On 10 October 2019, the Full Federal Court delivered its judgment in ALR17 v Minister for Home Affairs [2019] FCAFC 182 (ALR17).

   [1] Applicant’s written submissions filed 17 January 2019 at [44]

2. In ALR17 at [1] to [2], the Full Federal Court summarised the appellant’s argument, and an additional issue, thusly:

   [1]…According to the appellants, they raise a single issue, namely whether or not, notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth) (Act), the Immigration Assessment Authority (IAA) was obliged by natural justice (or procedural fairness) requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing. Resolution of this issue turns on the proper construction of relevant provisions in Pt 7AA.

   [2] As will shortly emerge, however, there is an anterior issue which was not confronted by the appellants until it was raised by the Court during the hearing. It concerns the fact that neither below, nor on the appeals, has there been any identification of the particular “adverse material” the subject of the appellants’ procedural unfairness claims. Accordingly, independently of the proper construction of relevant provisions in Pt 7AA, the appeals must fail because the appellants have not established a denial of any procedural fairness which was owed to them. By not identifying relevant “adverse matters” as a subject of their procedural fairness complaint, the appellants have not demonstrated that they were deprived of an opportunity to respond (assuming that procedural fairness so required).

3. The Amended Application in the present case raises materially the same issue for resolution by this Court. 

4. At [2] of ALR17, the Full Federal Court found that the failure of the appellant to have identified any adverse material the subject of his procedural fairness claims, was a "fundamental flaw" (which also rendered it unnecessary to resolve the issue identified in [1], or to consider (inter alia) the balance of the parties' submissions): see ALR17 at [18] to [19] per Nicholas, Griffiths and Gleeson JJ). Despite this, the Full Federal Court made several general observations in relation to the appellant’s contentions, including that:

   (a)Pt 7AA reviews are more restrictive than those conducted under Pts 5 and 7 of the Act, citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217: see ALR17 at [20] to [28];

   (b)the statement in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16) at [72] to the effect that "the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond", is plainly correct: see ALR17 at [31] to [32];

   (c)the combined effect of the exhaustive statement of procedural fairness in s 473DA of the Act, and the provisions of Pt 7AA discussed in ALR17 at [22] to [28], sit uncomfortably with the Applicant's contention that the decisions in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, DGZ16 and CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 were decided per incuriam: see ALR17 at [33];

   (d)the applicant's submissions as to the effect of the Explanatory Memorandum to the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) "must be rejected on the basis that the plain text of s 473DA prevails over an incorrect and inconsistent statement in the Explanatory Memorandum": see ALR17 at [34]; and

   (e)the reasoning of the plurality judgment of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [29] to [36] is consistent with the views expressed concerning the effect of s 473DA of the Act: see ALR17 at [35].

5. The applicant in DTP17 v Minister for Immigration and Border Protection (2019) 343 FLR 121 (DTP17) was also represented by the same Counsel as in both ALR17 and these proceedings.  DTP17 at first instance was determined before the appeal in ALR17.[2] The final ground of review in DTP17 was identical to the sole ground of review in the instant case. Accordingly, the same argument was advanced and considered by the (then) Federal Circuit Court where, at [68] to [70], Judge Driver found as follows:

   [68] First, s 473DA(1) of the Migration Act operates so that Division 3, together with ss 473GA and 473GB of Part 7AA, is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. This provision is broader than provisions such as ss 51A(1), 357A(1) and 422B(1) of the Migration Act, which contain the qualifying words, “in relation to the matters it deals with”. The effect of the presence of s 473DA(1) is that what is required by the hearing rule of procedural fairness is set forth in, and only in, Division 3 of Part 7AA of the Migration Act. The applicant has not identified any provision in that Division with which the Authority did not comply.

   [69] Secondly, Part 7AA of the Migration Act does not contain an equivalent of ss 360(1) or 425(1). As Reeves, Robertson and Rangiah JJ observed in DGZ16 v Minister for Immigration,46 the High Court’s judgment in SZBEL v Minister for Immigration47“is not the appropriate starting point”. It follows, their Honours said at [75], that there is no requirement in Part 7AA to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Nor is there any requirement “to notify the referred applicant that [the Authority] is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate” or “to inform the [referred applicant] of specific reservations about [his or her] case and to provide [him or her] with an opportunity to respond”.48

   [70]  Thirdly, s 473DA(2) provides that the Authority is not under a duty to give to a referred applicant any material that was before the delegate when he or she made the decision under s 65 of the Migration Act.

   [2] Judgment in DTP17 was delivered on 21 February 2019 and the appeal judgment in ALR17 was delivered on 10 October 2019

6. On appeal (determined after ARL17) in DTP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 17 (DTP17 appeal) at [26] to [29], Nicholas J found as follows:

   [26]  The Full Court went on (at [20]–[36]) to make some observations, in obiter, as to the issue of statutory construction which their Honours identified (at [1]), being “whether or not … the [Authority] was obliged by natural justice (or procedural fairness) requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing.” In the light of its conclusions at [14] and [16], the Full Court considered it unnecessary to resolve that question (at [36]).

   [27]  Like the appellant in ALR17, the appellant in the present case did not identify below, and has not identified in this Court, those matters adverse to him which he says procedural fairness obliged the Authority to put to him. That failure is fatal to ground 1 of the appeal.

   [28]  Further, the Full Court in DGZ16 said at [72] and [75]:

   [72]In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

   …

   [75]There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

   [29]  Those observations were correctly applied by the primary judge in this case when dealing with ground 5 of the appellant’s application. His Honour’s judgment on this point was correct and consistent with the Full Court’s holding in DGZ16.

7. Like the appellants in ALR17 and the DTP17 appeal (supra), the present applicant has failed to identify (with particularity, or at all) any adverse matters which he says were taken into account by the Authority and in respect of which he was denied the opportunity to comment.  While (as Nicholas J) observed in the DTP17 appeal at [26] the Full Court’s observations in ALR17 were obiter, and this Court is not bound to follow the approach of Judge Driver in DTP17, I am of the view that his Honour’s approach in DTP17 was correct, and I will follow it. 

8. The failure to identify adverse material is fatal to the applicant's claim that he was denied procedural fairness in the course of the Authority’s review, and no alleged practical injustice has been established as resulting. 

9. The applicant also alleges that the procedure followed by the Authority (particularly its ability to make decisions adverse to the applicant without him being privy to or making submissions in respect of, such material), is “inherently and categorically biased”.  I agree with Judge Driver in DTP17 (supra) at [71] that:   

   although Division 3 of Part 7AA does not state exhaustively the limb of natural justice relating to bias, no allegation of bias on the part of the Authority has been made by the applicant, despite paragraph (iv) of the particulars to Ground 5.

10. In the absence of proper particularisation, I reject the allegation made by the ground of review, and it fails.

11. In respect of the applicant’s oral submissions made at hearing, many of these went to the merits of his claims and the bases upon which he says that he cannot return to Sri Lanka.  As explained to the applicant during the hearing at several junctures, these are not matters which the Court can take into account in determining this review. 

12. It should also be recorded that at the conclusion of the hearing, judgment was reserved to a time to be notified the parties. In the days which followed the hearing, the applicant wrote to the Court several times imploring a favourable outcome, including one email sent directly to the Court (as opposed to the Chambers email address) which expressed a desire to self-harm. I directed my Associate to reply to the parties including with the contact details of community and counselling service providers in relation to that issue. The Court has considerable sympathy for the applicant’s personal circumstances, including those described by him at [35] above, his submissions as made at hearing, including those regarding access to medical assistance and also for the issues the applicant has been experiencing with his mental health. However, there is no humanitarian or compassionate basis upon which the Court can determine this review. The Court is limited to considering the decision of the Authority for jurisdictional error, and none having been established, there is no basis upon which to remit the decision.

    CONCLUSION

13. Absent jurisdictional error, the decision is a privative clause decision.  There is no discernible error in the Authority’s decision as alleged or at all.  Accordingly, the application must be dismissed. 

14. I will hear the parties as to costs.  

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       15 August 2024