BLR19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1386

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BLR19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1386

File number(s):

ADG 126 of 2019

Judgment of:

JUDGE GERRARD

Date of judgment:

18 December 2024

Catchwords:

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the applicant was unaware of the grounds raised – whether failure to consider claims – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 5J, 5J(1), 36(2)(a), 36(2)(aa), 473CA, 473CB, 473DC, 473DD, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii), 476

Cases cited:

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146

Craig v State of South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration and Border Protection[2018] FCAFC 2

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126; (1998) 86 FCR 547

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZKRT [2013] FCA 317

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294; [2005] HCA 24

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

66

Date of last submission/s:

12 October 2023

Date of hearing:

20 November 2024

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Tamil interpreter

Counsel for the First Respondent:

Leith Helsdon

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 126 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BLR19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application 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 GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). As will be explained, for the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.

   BACKGROUND

3. The applicant is a Sri Lankan Tamil who arrived in Australia as an unauthorised maritime arrival on 27 August 2012 (Court Book (CB) 11, 14, 154).

4. On 9 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 9-25). In that interview, he claimed that he left Sri Lanka because the Sri Lankan Criminal Investigation Department (CID) was looking for him due to a land dispute (CB 21). If returned to Sri Lanka, he fears he will be detained by the authorities and made to pay money in order to be released (CB 25).

5. On 14 September 2015, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a SHEV, noting that the applicant had previously made an invalid application for a protection visa (CB 26-32). On 12 October 2015, the applicant’s migration agent requested an extension of time to lodge an application, which was granted by a delegate of the Minister (CB 33-34). On 1 February 2016, the applicant was again invited to apply for a TPV or a SHEV (CB 35-41). The applicant was granted a further extension of time to lodge their visa application by 2 December 2016 (CB 42).

6. On 29 November 2016, the applicant lodged a valid application for a SHEV (the visa) (CB 56-93). The application was accompanied by identity documents, a letter of support from a parish priest in Sri Lanka, and a statement by the applicant detailing their claims for protection (CB 44-55).

7. On 14 September 2018, the applicant was invited to attend an interview scheduled for 9 October 2018 (CB 98-99).

8. On 7 December 2018, a delegate of the Minister refused to grant the applicant the visa (CB 100-120). On 20 December 2018, the applicant was re-notified of that decision after the Department became aware that the initial notification was defective (CB 121-124).

9. On 2 January 2019, the second respondent, the IAA, received two statutory declarations and country information from the applicant (CB 125-143). The applicant stated in a statutory declaration that he received the decision record of another person and had since obtained his own decision record when he attended at the Department’s office. He stated that he did not agree with the delegate’s decision and requested that the IAA carefully look at the decision record.

10. On 15 January 2019, the delegate’s decision was referred to the IAA for review, pursuant to s 473CA of the Migration Act 1958 (Cth) (the Act) (CB 145-146).

11. On 8 March 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 153-169).

12. On 8 April 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Act.

    THE IAA DECISION

13. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.

14. The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Act (at [3]). The IAA noted that this material included some identity and other supporting documents relating to a relative of the applicant, however it found that these documents were not relevant to the review and therefore did not have regard to them (at [4]).

15. The IAA considered the statutory declarations and country information received from the applicant on 2 January 2019, noting this was after the delegate’s decision had been made but before the matter had been referred to the IAA (at [5]). However, the IAA did not have regard to any country information that was not before the delegate, as it found that it did not satisfy s 473DD of the Act (at [6]).

16. After considering the statutory declarations, the IAA decided not to seek any further documents from the applicant (at [7]). The IAA did, however, obtain new country information reports that were not previously before the delegate. The IAA was satisfied that there were exceptional circumstances to justify considering this information, as the applicant raised protection claims relating to religion (at [8]).

17. The IAA summarised the applicant’s claims to fear harm in Sri Lanka as follows (at [9]) (without alteration):

    •He is a Catholic Tamil Sri Lankan, born in Mannar where, apart from two years in a refugee camp in India, he has lived his whole life.

    •Sometime after 1998 he was twice taken by the CID because he is Tamil and was suspected of being a Tamil Tiger (member of the Liberation Tigers of Tamil Eelam or ‘the LTTE’).

    •In 2012, the Minister of Development ‘RB’ (a Muslim Tamil) decided he wanted to acquire a large amount of land for his own farming purposes from an area owned by the Church, the applicant’s wife’s family and other villagers. RB purchased a segment of this land from a villager and by June 2012 he had fenced the entire area and started clearing it with bulldozers.

    •The Church leaders complained to the police and when they couldn’t do anything (even write a report or open a case), the owners approached the Mannar District’s Divisional Secretariat Office for help from the Assistant Government Agent. But again, because the Minister was a very powerful figure in Sri Lanka, their request was ignored.

    •The applicant, in a group of about 25 Catholic Tamils, destroyed the fence (‘the fence incident’). In an abuse of Ministerial power outside the legal process, RB sent CID personnel to the houses of those involved.

    •The applicant was away but the CID told his wife they would arrest and kill him. They returned another three or four times after that. The applicant managed to avoid them by staying away from home but he became so scared that he needed to leave Sri Lanka, along with his cousin who also destroyed the fence.

    •He experienced mental harm as a result of the property dispute and the threats and harassment from the CID, and fleeing his country. He has had a miserable life away from his wife and son. His wife’s family has suffered harshly having lost their land. There has been no justice of Tamils, especially Catholic Tamils, who are generally discriminated against and forced to compromise their views, religion and ethnicity by cooperating with the Sinhalese authorities.

    •He fears being harmed, jailed and killed upon return by the Minister and his people (including the CID) who will view him as a trouble maker. He cannot avoid harm by moving within Sri Lanka as the CID are a national institution and he will be easily identified when using his National Identity Card (NIC).

18. The IAA set out the refugee assessment criteria in respect of whether the applicant has a well-founded fear of persecution pursuant to s 5J of the Act (at [10]-[11]).

19. The IAA accepted that there was no issue regarding the applicant’s identity, being a Tamil Catholic male from Mannar in the Northern Province of Sri Lanka (at [12]).

20. Notwithstanding some reservations about the accuracy of the timeline, the IAA accepted the applicant’s claims about the land dispute involving the Minister of Development, the fence incident, and the subsequent threats by the Criminal Investigation Department (the CID) which caused him to leave Sri Lanka (at [13]-[15]).

21. However, with reference to the applicant’s claim in his SHEV interview that his brother-in-law, who had also fled to Australia after being involved in the fence incident but had since returned to Sri Lanka, was the victim of a hit-and-run accident resulting in the amputation of his leg, the IAA did not accept that this was a targeted attack or that it had any connection with the land dispute (at [17]).

22. The IAA considered the applicant’s claims to fear harm as a result of the land dispute but, in light of the above finding and country information, it found the claims of ongoing unofficial visits and threats from the CID to be implausible. It found that the applicant would not be viewed as a “trouble maker” and that he would not be harmed or be of adverse interest to the Minister or the authorities if he were to return to Sri Lanka (at [18]-[19]).

23. The IAA found that the land under dispute was not previously being used by the applicant or his family for agricultural purposes and that they still had some land with their house. The IAA further noted that the applicant had worked as a tailor, fisherman and delivery driver and would therefore not otherwise be prevented from earning a livelihood. The IAA found there was not a real chance that the applicant would face hardship over the land dispute such that it would amount to serious harm (at [20]).

24. The IAA also did not accept there was a real chance the applicant would face problems amounting to persecution due to any claimed mental health issues arising from the land dispute. The IAA noted there was neither evidence of a diagnosed mental health condition or treatment of such, nor was there evidence or country information to suggest that persons with mental health conditions would be targeted, harmed or denied treatment in Sri Lanka (at [21]).

25. The IAA accepted that the applicant had twice been taken for enquiries where he was verbally abused and threatened, and that he lived in an environment hostile to Tamil civilians, but that this was around 1998-2000 and country information suggests the situation for Tamils has significantly improved since that time (at [22]-[25]). He has not since been arrested or detained and there are no outstanding warrants for his arrest (at [24]).

26. The IAA found that the applicant had never been a member of the LTTE, and neither he nor any members of his family had associated with or assisted the LTTE. Similarly, the IAA was satisfied that the applicant was not suspected of being an LTTE member or supporter, and was not of any official adverse interest to the authorities in connection with the LTTE or any other reason when he left Sri Lanka (at [24]).

27. Having regard to country information, as well as the applicant’s circumstances and profile, the IAA found that the applicant would not now, or in the reasonably foreseeable future, face a real chance of harm in Sri Lanka on account of his Tamil race or any particular political imputations arising from his race, gender, age, origin or other circumstantial factors (at [30]).

28. The IAA considered the applicant’s status as a Roman Catholic Christian Tamil and his claim that Catholic Tamils are targeted and discriminated against by the authorities, however it found that the applicant himself had not previously faced any hardship purely on account of his religion (at [31]-[34]). Having regard to country information, the IAA found that the chance of the applicant facing discrimination or harm as an ordinary member of the Christian, Roman Catholic, Tamil Christian or Catholic community, or being otherwise unable to freely practise his faith, would be more than remote (at [34]). Accordingly, the IAA was not satisfied the applicant would face a real chance of harm as a Christian in Sri Lanka (at [35]).

29. The IAA considered and accepted that if the applicant returned to Sri Lanka, he would be identified as a failed or returning asylum seeker and that the authorities would become aware of his history (at [36]-[38]). However, the IAA found that the applicant would not be of LTTE-related concern or of any other kind of adverse interest to the authorities, and that the chance of there being any official record of his involvement in the fence incident would be remote (at [38]).

30. The IAA accepted that the applicant may be arrested and charged for his illegal departure, but found that the process leading to arrest, charge, conviction and punishment would be the result of a law of general application to all Sri Lankans who depart illegally, and does not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act (at [40]-[45]). The IAA therefore found that the applicant would not face a real risk of persecution arising from returnee processing, his status as a failed or returned asylum seeker, or from the processes and consequences arising from his illegal departure (at [46]).

31. The IAA considered what may happen when the applicant attempts to re-settle in Mannar, and it accepted that he may be visited and monitored by the authorities on the basis of his returnee status but that this would not amount to serious harm (at [47]). The IAA accepted that the applicant would face challenges upon his return but found that he would be supported by family and would not face a level of discrimination that would amount to serious harm (at [48]).

32. Having made those findings and considered the claims individually and cumulatively, the IAA was not satisfied that the applicant has a well-founded fear of persecution. The applicant therefore did not meet the requirements of the definition of refugee in s 5H(1) or the criteria in s 36(2)(a) of the Act (at [49]-[50]).

33. The IAA then considered the applicant against the complementary protection criterion. The IAA relied on the same findings of fact with respect to Sri Lanka as it did in its assessment of the refugee criteria (at [53]-[58]).

34. The IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act (at [59]).

35. Having regard to all of the above, the IAA therefore concluded that the applicant was unable to meet the relevant visa criteria.

    APPLICATION TO THIS COURT

36. The application for judicial review filed by the applicant on 8 April 2019 contains the following grounds of review (without alteration):

    1.The   IAA decision was  inconsistent, illogical and so unreasonable

    Particulars

    a.   The applicant  claimed his brother was a colonel in the LTTE

    b.   .The IAA wrongfully made an  assumption that the application brother  was not died by military

    c.   I will provide more details and information once the court book is prepared.

    2.Ground

    3.The decision was inconsistent. Illogical and so unreasonable to not accept the information associated in processing enmasse

    4.The IAA  was not satisfied that there are exceptional circumstances to consider this information

37. The applicant filed an affidavit with that judicial review application on 8 April 2019. The affidavit annexed a copy of the IAA’s decision.

38. The applicant appeared before the Court on 20 November 2024 without legal representation but with the assistance of a Tamil interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.

39. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 8 April 2019 (the affidavit being taken as read and in evidence at the hearing on 20 November 2024), a Court Book numbering 169 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 12 October 2023.

40. The Court raised with Ms Helsdon, as the Minister’s representative, that the IAA decision refers to two newspaper articles included in the applicant’s invalid SHEV application that do not appear in the Court Book. Ms Helsdon informed the Court that untranslated documents are generally not reproduced in the Court Book, however agreed to file an affidavit annexing that material on behalf of the Minister. The affidavit of Tara Rossetto affirmed on 20 November 2024, annexing those two documents, was filed later that day. Nothing turns on this material.

41. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 20 November 2024, the applicant was invited to tell the Court what he believed to be wrong with the IAA’s decision and/or procedure.

1. The Court also took some time to explain that it could not undertake a merits review of the IAA’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the IAA decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

   (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

   (b)where the decision-maker ignores relevant material (Craig at 178);

   (c)where the decision-maker relies on irrelevant material (Craig at 178);

   (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);

   (e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZKRT [2013] FCA 317 at [111]);

   (f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

   (g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).

2. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the IAA had fallen into error.

3. The Court also raised with the applicant that it had seen these identical grounds before in an application by another person, and that they do not appear to relate to the claims he made in his visa application or when he appeared before the IAA. The applicant confirmed that he had assistance in preparing this application and that his “brother-in-law gave the very same grounds or submissions because we both came together”. He confirmed in particular that he had never made the claim that his brother was a colonel in the LTTE. He said he did not know if the person assisting him included more information than what he had told him, or if that person had made a mistake. He also said that he did not know how to make legal arguments and that he had not read the Court Book because he doesn’t know English.

4. Against this background, the Court invited the applicant to tell the Court what he says is wrong with the IAA decision. The applicant did not make any substantive submissions. The Court specifically asked the applicant if he had anything to say in respect of the claim that the IAA decision was illogical or unreasonable and he did not add anything further. When asked whether he had anything to say in respect of the claim that the IAA acted unreasonably in not accepting information provided by the applicant, he confirmed he had nothing to say.

5. The applicant had nothing to say in reply to the Minister’s submissions, save to repeat that he did not have a brother.

   CONSIDERATION

6. As outlined above, there are four grounds of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). That is more acute in this case where the applicant confirmed that the grounds were prepared by another person and at least one of those grounds patently bears no resemblance to the applicant’s circumstances. Whilst those grounds clearly were made in respect of another person, they were not abandoned by the applicant who did not make any further submissions at the hearing of this matter. In those circumstances, the Court will consider the grounds to see whether they reveal error in the IAA decision.

   Grounds one and two

7. Grounds one and two can be dealt with together. Through these grounds, the applicant submits that the IAA’s decision was “inconsistent, illogical and so unreasonable” by not considering his brother’s involvement in the LTTE.

8. The applicant confirmed to the Court that he did not have a brother. The Minister did not wish to make submissions in respect of ground one, where the applicant did not understand he was alleging such a ground in relation to a brother. Whilst the ground was not formally abandoned by the applicant it is clear from his confirmation in this Court and the evidence which was before the IAA that it has no nexus to the claims actually made by the applicant. Indeed, it is completely inconsistent with his evidence that he did not have any siblings and that none of his family members had ever associated with the LTTE.

9. In relation to ground two, it is obvious that this is not an intentional ground but rather an example of the kind of rudimentary drafting styles often seen in this Court from self-represented applicants unfamiliar with the niceties of legal drafting. That is not a criticism. The Court well appreciates the difficulties a self-represented applicant with limited English faces in preparing a formal legal document. As stated above, the Court will always endeavour to ascertain the gist of an applicant’s ground where that is apparent. What is apparent here is that no ground is actually pressed.

10. Noting these circumstances, the Court accepts that no jurisdictional error arises in respect of these grounds.

    Grounds three and four

11. Grounds three and four can also be dealt with together. Through these grounds, the applicant submits that the IAA’s decision was “inconsistent, illogical and so unreasonable” by not accepting the information associated in processing en masse, and that it was not satisfied there were exceptional circumstances to consider such information. The applicant did not seek to elaborate on these grounds at the hearing of this matter.

12. In written submissions, the Minister submitted that the applicant did not make any claims or provide any information about en masse processing, nor is there anything before the Court to show that any such claim or information clearly emerged from the material before the authority (citing NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]).

13. The Court accepts the Minister’s submission that, although the applicant did provide several pages of country information to the IAA, none of that material contained information concerning mass processing of arrivals in Sri Lanka (CB 127-143).

14. The Minister submits that the applicant has not specified in ground four which information it asserts the IAA should have found that there were exceptional circumstances to consider. However, to the extent that this ground is directed to the IAA’s consideration of the new country information provided by the applicant, the Minister submits that no jurisdictional error is established.

15. In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (at [11]-12], [23]), the High Court considered the nature of the IAA’s procedural duties under s 473DD of the Act and held that the IAA is required to assess new information against the criteria specified in ss 473DD(b)(i) and (ii), and if satisfied that either or both of the criteria are met, to take the outcome of that assessment into consideration of the exceptional circumstances under s 473DD(a) of the Act. Further, if neither of the s 473DD(b) criteria are met, the IAA is prohibited from considering that new information and there is no need to assess the new information against s 473DD(a).

16. The IAA observed that the new country information provided by the applicant significantly pre-dated the delegate’s decision and found that there was no apparent reason why that country information could not have been provided to the delegate. The IAA also found that the new country information was general country information and was not credible personal information. The IAA was also unable to identify any exceptional circumstances which would permit it to consider that new information. The Court finds that there was no error in the approach taken by the IAA in its decision to decline to consider the new information on the basis that it failed to satisfy s 473DD of the Act.

17. At the hearing, Ms Helsdon noted that the applicant provided a statutory declaration to the IAA which indicated that he would provide more documents if requested. Ms Helsdon submitted on behalf of the Minister that the exercise of the IAA’s power to obtain new information must be considered in the context that it does not have a duty to do so if it does not consider that information to be relevant, as prescribed by s 473DC of the Act. Given there was no indication as to what further documents or information the applicant might be able to provide, whether he could have provided that information earlier, or whether it amounted to credible personal information, the Minister submits that the IAA was correct to not seek further information from the applicant.

18. The Court agrees with the Minister’s submission in this respect. Furthermore, the IAA clearly turned its mind to whether it should exercise its discretion to obtain additional information. The applicant’s failure to identify what additional material or information might be provided was a reasonable basis for deciding not to seek further documentation from the applicant. Indeed, the IAA also turned its mind as to whether there was a rationale to obtain updated country information relevant to the applicant’s claim to fear harm on the basis of his religion and did so.

19. No jurisdictional error arises in respect of grounds three and four.

20. The Court further finds that the IAA understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. All of the matters considered by the IAA were clearly relevant and there is no evidence that it failed to consider irrelevant material. The IAA’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146; Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126; (1998) 86 FCR 547 and DAO16 v Minister for Immigration and Border Protection[2018] FCAFC 2). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS)..

21. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the IAA’s decision. Ms Helsdon simply noted that the IAA considered the applicant’s claim or purported claim of religion in much greater detail than the delegate, and whilst the IAA is entitled to reach a different view to that of the delegate, Ms Helsdon submitted this was not a dispositive issue which would require the applicant to potentially give further information.

22. The Court agrees. No jurisdictional error therefore arises.

23. The Court is satisfied that, even adopting the broad approach referred to in [47] of these reasons, no jurisdictional error is apparent.

    CONCLUSION

24. The application for judicial review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the IAA. The Court is otherwise unable to identify any jurisdictional error on the part of the IAA.

25. Accordingly, the application is dismissed.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       18 December 2024