BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13

File number(s):

SYG 1177 of 2017

Judgment of:

JUDGE GIVEN

Date of judgment:

25 February 2022

Catchwords:

MIGRATION - application in a case seeking reinstatement of judicial review application – delay in seeking reinstatement – adjournment request in similar terms to an unrelated matter – solicitor not on record when adjournment request made – inadequate explanation for delay and proposed grounds of review not reasonably arguable – application in a case dismissed.   

Legislation:

Migration Act 1958 (Cth), ss 36, 473DD

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 17.05

Federal Circuit Court Rules2001 (Cth). r 13.03, 16.05

Federal Court Rules 2011 (Cth), r 2.16

Cases cited:

ARN17 v  Minister for Immigration and Border Protection [2018] FCA 974

AUS17 Minister for Immigration and Border Protection (2020) 269 CLR 494

AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752

AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10.

CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344

CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

CRU18 v Minister for Home Affairs (2020) 277 FCR 493

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475

Hickey v Australian Telecommunications Commission (1983) 48 ALR 517

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 12 FCR 187

Lucic v Nolan (1982) 45 ALR 411

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 42

Muzammil v Minister for Home Affairs [2019] FCCA 1564

MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590

Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Division:

Division 2 General Federal Law

Number of paragraphs:

98

Date of hearing:

8 December 2021

Place:

Sydney

Counsel for the Applicant:

Mr G Foster

Solicitor for the Applicant:

Sentil Solicitor

Solicitor for the Respondents:

Mills Oakley

ORDERS

SYG 1177 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BQS17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	25 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The application in a proceeding filed on 30 August 2021 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. By an application in a proceeding filed with the Court on 30 August 2021 the applicant seeks to set aside orders made by Registrar Morgan on 10 August 2017 pursuant to r 13.03C(1)(c) of the (then) Federal Circuit Court Rules2001 (Cth) (former Rules), dismissing the matter when the applicant failed to attend a directions hearing (reinstatement application).

2. The reinstatement application is opposed by the first respondent who seeks that it be dismissed, with costs.

   BACKGROUND

3. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia on 27 September 2012 as an unauthorised maritime arrival. On 27 January 2013 the applicant participated in an arrival interview in which his claimed reasons for leaving Sri Lanka were first recorded.  On 19 February 2016, the applicant lodged an application for a Safe Haven Enterprise visa (SHEV) and included his claims in a statutory declaration, namely that:

   (a)his parents and one of his brothers (TS) had been killed in an air strike in the 1980s, two of his other brothers (TT and TI) had been shot and killed by the Sri Lankan Army (SLA) in the 1990s and his remaining brother (TJ) was taken to a rehabilitation camp in Vavuniya in May 2009 where he was tortured, harmed and detained for two years on suspicion of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE) even though he had no LTTE affiliation;

   (b)his sisters (PS and PP) lived in Kilinochchi District with their husbands;

   (c)after TT and TI were killed, the SLA came to the applicant’s house looking for him and threatened to kill him;

   (d)the applicant was arrested by the SLA in 2007 while in Batticaloa and detained and tortured for two weeks. He was not charged with any offence and his wife paid a ransom to secure his release. The applicant claimed to then have travelled (illegally) to Qatar in March 2008, where he proceeded to work as a cleaner for 2 years before returning to Sri Lanka.  His reason for return was said to be that he witnessed discrimination and violence against Tamils working in Qatar, and he thought the SLA would have forgotten him;

   (e)in March 2011 the applicant was allegedly taken to a detention centre by the SLA and again released after his wife paid a ransom. The applicant was fearful that “they” had threatened his life again and he hid for a few months before coming to Australia illegally in order to protect his life and finding a job to support his family; and

   (f)The applicant believed the SLA and members of the “HTF” would harm him on return to Sri Lanka because they were reported to do so to Tamils.

4. On 17 May 2016, the applicant attended an interview with a delegate of the Minister (delegate) and on 2 August 2016 he was invited to provide further information in response to issues raised by the delegate at the SHEV interview. On 12 August 2016 the applicant submitted a statutory declaration by which he:

   (a)gave additional details relating to the deaths of TI and TT, and claimed that any inconsistencies between his prior written and oral evidence in respect of them should be considered the result of confusion;

   (b)said he had been “taken” by the Sri Lanka Special Task Force (STF) on 17 January 2000 because he was suspected of being a member of the LTTE, that he was jailed for 18 months and released on 4 April 2001 after his wife paid a ransom; and

   (c)stated that he was again detained by the police and SLA for two weeks in 2011.

5. On 6 September 2016, the delegate refused to grant the applicant a SHEV and referred that decision to the Immigration Assessment Authority (Authority) on 12 September 2016.

6. On 3 October 2016, the applicant provided a written submission and various country information to the Authority.  The written submission included what the applicant said was “recent information” which he could not previously have provided, being that while seeking medical treatment at a hospital in Northern Province, his brother and two others were arrested and questioned by the Criminal Investigation Division (CID) and that as a result his brother told him not to return because the CID were looking by reason of his being an LTTE member (CID claim).

7. On 16 March 2017, the Authority affirmed the decision under review.  The Authority accepted that while the CID claim was new information, it was not satisfied there were exceptional circumstances to justify its consideration given the bare assertion that the applicant had been unable to provide it, but there otherwise being no explanation as to why (at [8]).

8. The Authority compared the information the applicant had given including his entry interview claims (at [17]), SHEV application form (at [18]) and SHEV statement (at [19]), the SHEV interview (at [20]) and statutory declaration submitted following the same (at [21]) and found that the applicant had provided “materially inconsistent evidence” about his detention because he had variously claimed to have been detained between two and four times and gave different dates and lengths for the periods, together with varying accounts of who had detained him.

9. The Authority took the view that these inconsistencies undermined the credibility of the applicant’s claims to have been detained in the past. The Authority observed that the applicant claimed the SLA looked for him after his brothers were shot, while  the evidence given in the SHEV application was that he met and married his wife in 2007 but his brothers had allegedly been killed in 1997 and 1999.

10. This was significant because the Authority found it was not credible that the SLA would threaten the applicant’s wife 18-20 years before he met her.  The timing of the applicant’s claimed detention in 2006, 2007 and 2008 was also inconsistent with his claimed travel to Qatar in March 2008 (at [22]).

11. The Authority did not accept that the applicant went illegally to Qatar and based on an assessment of country information instead found that his ability to travel on a valid passport, issued lawfully, was inconsistent with his claims that he was of interest to the Sri Lankan authorities (at [28]).

12. The Authority also did not accept that the SLA came looking for the applicant after the shooting deaths of his brothers, that he was arrested or tortured as claimed and found, by reference to country information, that the applicant had exaggerated the threat he faced from Singhalese as a Tamil ([30] to [33]).

13. The Authority was not satisfied the applicant faced a real chance of serious harm in the reasonably foreseeable future from the authorities, the Karuna Group, the SLA, the STF, the CID, the police or Singhalese for an imputed pro-LTTE political opinion or because of his age, Tamil ethnicity, originating from the North and living in the East, having lived in Qatar, having lived in an LTTE-controlled area, having scars, the deaths of his family members and rehabilitation of his brother TJ (at [35]). Having considered the applicant’s evidence and claims (individually and cumulatively), the Authority was not satisfied the applicant had a well-founded fear of persecution from any of his claimed antagonists for the s 5J(1)(a) reasons he claimed or met the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act) (at [49] to [50]).

    Current Proceedings

14. The applicant commenced the instant proceedings on 19 April 2017 by an application to show cause seeking judicial review of the Authority’s decision.  The originating application was filed together with an Affidavit in support made by the applicant on the same date.  At the time of filing, the matter was listed for a first Court date on 3 August 2017.

15. On 3 August 2017, the applicant failed to attend the first Court date directions hearing and the Registrar made orders adjourning the matter for 1 week in order to enable the applicant to do so.  Additional orders made by the Registrar on 3 August 2017 required that the first respondent’s solicitors notify the applicant of the orders made on that date.  On 7 August 2017 the solicitors for the first respondent received a letter dated 4 August 2017 from the applicant by post (see Annexure EJTS-2 to the Affidavit of Edwin Jack Taylor affirmed 29 October 2021 which was read at hearing before me without objection (Taylor Affidavit)).  That letter:

    (a)stated: “The Directions Hearing was to take place on 3 August 2017.  As I was admitted to hospital I couldn’t attend to the Court.  Please grant me another date for me to attend.  I have attached a letter from my GP…”; and

    (b)attached a medical certificate from the said GP which certified that the applicant: “IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD 02/08/2017 TO 04/8/2017 INCLUSIVE.  He was admitted to Black town hospital on 2/8/2017.  This Certificate was completed on 04/08/2017.” (medical certificate).

16. On 7 August 2017 the solicitors for the first respondent wrote to the applicant at the email address for service provided by the originating application (gmail address) informing him of the adjournment of the directions hearing to 10.15am on 10 August 2017 and that if he failed to attend on that next occasion the first respondent would seek orders for dismissal with costs (see Annexure EJTS-3 to the Taylor Affidavit).   

17. On 10 August 2017 the applicant failed to attend the further directions hearing which had been listed at 10.15 am.  The notation on the orders made by Registrar Morgan records that the matter was also called at midday and there was no appearance.  The Court dismissed the proceedings and ordered the first respondent’s solicitors to notify the applicant of the orders together with his rights under r 16.05(2)(a) of the former Rules, within 5 days of the date of the orders.  The first respondent complied with the notification orders on 14 August 2017 by email to the applicant’s gmail address (see Annexure EJTS-5 to the Taylor Affidavit). 

18. On 30 August 2021 the reinstatement application was filed with the Court.  On its face the applicant remained unrepresented and the footer to the first page of the application was left blank where provision is made to state by whom the document is prepared. 

19. The reinstatement application was accompanied by an Affidavit (which was read at hearing before me without objection) (applicant’s Affidavit) which:

    (a)is silent as to its authorship by reference to the footer on page 1, giving the impression it was prepared by the applicant himself;

    (b)states on page 1 that the date it was affirmed is 24 July 2021;

    (c)has a jurat on page 4 which says that it was affirmed/witnessed on 29 July 2021;

    (d)despite having been completed almost a month prior, was then not filed until 30 August 2021;

    (e)annexes (at Annexure ‘A’) a draft proposed Amended Application which is (curiously) dated 1 August 2021, being 2 days after the Affidavit was purported to be affirmed.  That proposed Amended Application is also silent as to its authorship, giving the impression that the applicant remains unrepresented.  The proposed Amended Application also requests that an interpreter be provided for the applicant, which is usually reserved for unrepresented applicants; and

    (f)annexes (at Annexure ‘D’) 2 documents (each of which appears to have been annexed twice) being a discharge report from Blacktown Hospital at about 5pm on 2 December 2017 (Hospital Report) and an invoice which relates to a different period of hospitalisation, in December 2018.  

20. On 25 October 2021 this matter was brought into my docket and orders were made listing it for hearing before me at 2.15pm on 18 November 2021.  The listing notice and orders were sent to the parties (including the applicant at his gmail address) on the afternoon of 25 October 2021. 

21. On 9 November 2021 an email was sent to the Court by the applicant the body of which said “Please find enclosed herewith my humble request. Thank you.”  Attached to that email was a photograph of a typed letter, to which the applicant had applied his signature and it bore a handwritten date ‘9-11-2021’. The letter relevantly stated (errors and emphasis in original):

    I have already approached the lawyer in Sydney who has already assisted me in my case and who is familiar with it.  He contacted his Counsel who is also familiar with my case, and who would be briefed to appear.  Unfortunately, he is appearing in a criminal trial commenced on 8 November 2021, which could run to 2+ weeks.

    Accordingly the barrister may not be available to appear for me.

    My request is for the Court to relist my matter in December 2021 when my Solicitor and Counsel would be available.

    I enclose Unavailable dates for the Solicitor and Counsel in December: 1, 9, 13 and 23-31.

22. The Minister’s position in respect of this request was to not oppose it.

23. On 9 November 2021 that adjournment request was brought to the attention of my chambers.  Five days earlier I had received an adjournment request in another matter (proceeding MLG1266/2015 – AYF15) in which reinstatement was also sought and which, by coincidence, I had also listed for hearing on 18 November 2021. 

24. The adjournment requests were each made by sending a photograph of a typed letter to the Court attached to an email, and were relevantly identical as to their terms, although in proceeding AYF15 Counsel’s criminal trial was said to be commencing on 1 November 2021 not 8 November 2021 and in the instant matter the unavailable dates had been updated to include 1 December (being the date on which I had already re-listed proceeding AYF15 after adjourning it also).    

25. On 10 November 2021 I requested that the Registry respond, as follows:

    The Court has considered the applicant’s correspondence of 9 November 2021 which requests an adjournment of the hearing of his interlocutory application, presently is listed at 2.15pm on 18 November 2021 until December, on the basis that an (unnamed male Counsel) “is appearing in a criminal trial commenced on 8 November 2021, which could run to 2+ weeks”.  The applicant’s adjournment request also makes reference to a solicitor being involved, albeit no Notice of Address for Service has been filed to date by a practitioner.  The first respondent does not oppose the adjournment. 

    The Court notes that the adjournment request is in a template form which has been used by another applicant this week in seeking an adjournment of a different fixture before Judge Given on 18 November 2021, but claiming a different starting date of the ‘criminal trial‘.  

    Despite this, the matter will be relisted for hearing at 2.15pm on 8 December 2021, and orders 2 and 3 made by Registrar Carney on 25 October 2021 remain extant. 

    The Court requests that any Notice of Address for Service be filed without delay, or that in the absence of a solicitor being retained, that the details of any Counsel on a direct access basis be provided to the Court and the first respondent so that correspondence can be directed to them.

26. On 21 November 2021 a Notice of Address for Service was filed appointing the applicant’s current solicitor.  The same Counsel and solicitor appeared in each of proceeding AYF15 and this matter. 

27. As the matter of AYF15 was heard first, I had an opportunity to raise these issues with Counsel for the applicant in that matter.  Judgment in that matter was delivered immediately prior to the reasons for judgment in this matter: see AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10.

28. At the hearing of this matter, Counsel for the applicant acknowledged that, as with proceeding AYF15 he and/or his instructing solicitor were responsible for the drafting of the reinstatement application, the Affidavit in support and the adjournment request. Given this, the anomalies in the Affidavit which I have identified (at [19] above) are surprising.

29. For the reasons given in AYF15 (supra), I would again treat as r 2.16 of the Federal Court Rules 2011 (Cth) (FCA Rules) as applying in this Court with a now necessary amendment to the chapeau by the omission of the words “under a horizontal line at the foot of the front page of the document” pursuant to rule 1.06(2) of the Rules and reiterate the importance of any document filed in this Court accurately setting out in the relevant part of the form its authorship, particular where there is a lawyer involved: see AYF15 (supra) at [45] to [48] citing ARN17 v  Minister for Immigration and Border Protection [2018] FCA 974 at [43] and CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495.

1. As in AYF15 (supra), I have not included as a factor in my consideration of the applicant’s reinstatement application the lack of candour which was involved in the failure of the Court documents to disclose the involvement of his legal representatives, nor that fact that the adjournment request was drafted in such a way as to make it seem it was being made by an unrepresented applicant.  I have accepted the statement of the applicant’s Counsel that these events  will not occur again.

   Relevant Principles

2. The Court's power to set aside the orders made on 10 August 2017 is (now) contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) which relevantly provides that:

   (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

   (a) it was made in the absence of a party;

   …

3. The power in r 17.05(2)(a) is discretionary and the Court is required to consider whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] and [52]. In considering the exercise of that discretion, the Court consistently had regard to at least three factors and whether they weigh for or against reinstatement (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), namely whether:

   (a)the applicant has provided a reasonable excuse for their absence from the hearing at which the proceeding was dismissed by reason of their non-attendance, together with a reasonable excuse for any delay in seeking reinstatement (if relevant);

   (b)there would be any prejudice to the other party if reinstatement were to be granted; and

   (c)there exists a reasonably arguable prospect of success of the grounds of the  substantive application, with that assessment to be taken at a reasonably impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.

   Explanation for absence and delay in seeking reinstatement

4. The applicant commenced the instant proceedings by an application to show cause filed with the Court on 19 April 2017. That application, made pursuant to s 476 of the Act, sought judicial review of the Authority’s decision. Part of the relevant chronology discernible from the documents before the Court is set out above at [14] to [19]. Against that background, an explanation is provided in the applicant’s Affidavit. The parts relevant to the explanation of non-attendance and delay are as follows (errors in original):

   4.  I received a letter from the Respondent’s Solicitor advising me that the Court date was 3 August 2017. 

   5.  I was admitted to Blacktown hospital on 2 August 2017 after suffered a seizure and falling on the footpath.  I was placed under medical treatment with Dr [NS] from 2 August 2017 to 4 August 2017.  I was discharged on the same day.

   6.  On 3 August 2017 I was not still feeling well and was unable to travel.  I also vaguely concern I may suffer another seizure during the morning while travelling to the city from home or at court, as I have no control over my body when suffering seizure and can easily suffer injury when I fall.

   7.  I was again admitted to Blacktown Hospital from 21 December 2018 until 22 December 2018 due to another seizure new the Commonwealth Bank Toongabbie.  I fell to the ground and injured my lip which required stitching.  I do not remember falling and regained my memory while in Blacktown hospital when I was informed the circumstances of my admission. 

   8.  Until June 2021, I believed that my case was still ongoing and awaited correspondence from the Court advising me of the new Court date.  However, because of the extensive silence, I decided to seek assistance from a lawyer about progress of my Court Application.

   9.  I first met a lawyer who gave me some advice. 

   10.  Subsequently, after the registry had been contacted I was advised that my case had been dismissed.  The Court registry sent a copy of Orders made 3 August 2017 & 10 August 2017.

   11. I note the matter was adjourned from 3 Augustb2017 to 10 August 2017, I was unaware of the adjournment. I further note Registrar Morgan dismissed my application on 10 August 2021 [sic:2017] and ordered the First Respondent, within five days, is to provide the Applicant with written notice of today’s orders and inform the Applicant of the Applicant’s rights under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). I did not receive notice as ordered at Order 4.

5. Simply put, the applicant’s explanation for his non-attendance is based on medical issues, namely that he suffered a seizure on 2 August 2017.  The seizure explanation was also reiterated in the written and oral submissions to the Court made by the applicant’s Counsel. 

6. However, the bare claim that the applicant suffered a seizure is not the full story.  As noted previously, there are several documents annexed to the Applicant’s Affidavit including the Hospital Record, which relevantly provides as follows (errors in original):

   Dear Dr [NN],

   Thank you for reviewing [BQS17] a 39 year old male to be discharged on 02/08/2017 from the BL Emergency Dept at Blacktown Hospital.  [BQS17] presented to this facility with Apparently drunk.

   39 years old man BIBA alcohol intoxication

   Found by the bystander ,found on footpath , unsteady gait, intoxicated

   Called from ambulance unsure about the amount of alcohol

   …

   pateint denied alcohol ingesion this morning –although strong smell of alcohol

   said he has a lot of pressure ,his wife is in Srilanka , recently his visa refused recently he has to go to court tomorrow so hesometimes drinks alcohol ,not much

   recent presentation to westmead hospital with alcohol withdrwal seizure , self discharge but advised to take carbamazepine…

   …everything normal but he has not advised about the about the carbamazepine he is not taking teh medication

   he is not eating for last 2-3 days

   denied any seizure since then but had episode of unconsciousness followed by alcohol ingesion ,unsure when

   …

   offered D&A inpateint but patient has to attend court tomorrow so he wants to leav today but he said he has good Tamil speaking GP in Toongabee he will follow up with his GP and conatct D & A people for possible detox

   DA number given to teh pateint

   10 mg of Diazepum given

   please See your GP and please contact drug and alcohol service

   Health Status

   Principle and Other Diagnosis

   Alcohol intoxication (SNMCT 43091018, Discharge, ED Medical)

7. The Applicant’s Affidavit was read without objection and the first respondent’s solicitor did not require him for cross-examination.  However, notwithstanding this, there are certain inconsistencies which arise between the explanation the applicant advances, and the Hospital Report he has submitted in support thereof, which belie aspects of the explanation.

8. I am prepared to accept that the applicant was admitted to Blacktown Hospital on 2 August 2017 and that the situation leading to that admission may have involved some sort of seizure (even though it appears from the Hospital Record that the applicant himself denied having had a seizure to hospital staff). 

9. What is also apparent though is that the circumstances surrounding the applicant’s admission centred around him being intoxicated.  In fact, alcohol intoxication is the sole diagnosis of the hospital for this admission.  It is also clear that the hospital staff urged the applicant to remain as an inpatient in order to seek drug and alcohol services, but that he declined this in order that he could leave and attend his Court date the next day.

10. The Hospital Record also records that this is not the first time the applicant had been admitted to hospital for an alcohol-related seizure.

11. To the extent that the Hospital Record either contradicts the applicant’s version of events or augments gaps in it, providing a more fulsome picture, I prefer and accept the Hospital Record.  While it contains an array of typographic errors, it is a more persuasive version of events than the applicant proffers to the Court, given that it is a contemporaneous record of the admission and is also independent of any vested interest in the outcome of these proceedings and/or their reinstatement.  

12. To the extent that the applicant says that he suffered a seizure leading to his hospitalisation, I find that while that may be so, it was alcohol related and therefore to a certain degree it could be considered to be self-inflicted.

13. The Applicant’s Affidavit at [5] also asserts that he “was placed under medical treatment with Dr [NS] from 2 August 2017 to 4 August 2017”.  The Hospital Record says that the applicant’s treating physician to whom he was discharged was a Dr [NN], albeit in the same Toongabbie medical centre as is recorded on the medical certificate from Dr [NS] which the applicant provided to the first respondent’s solicitor under cover of letter on 4 August 2017 (see [15(b)] above).  There is nothing to suggest to me that the applicant was admitted to Blacktown Hospital by Dr [NS] (or any other GP) and the medical certificate states that it was completed on 4 August 2017.  There is no record of the applicant having seen Dr [NS] on 2 or 3 August 2017 and I infer therefore that to the extent the medical certificate purports to cover a period of 2 August 2017 to 4 August 2017, this was based on the applicant’s recounting of events to the doctor and possibly the discharge report.  These inaccuracies in statements so clearly advanced by the Applicant’s Affidavit detract from the overall impression as to the veracity of his account, particularly given that I am informed that he was assisted by a legal representative in the preparation of the Affidavit.  There is also nothing in the medical certificate to say that the applicant was not fit to attend Court.

14. Lastly, in relation to medical matters, at [7] of the Applicant’s Affidavit he deposes to having been hospitalised for a seizure in late 2018.  The evidence provided in support of this is simply an invoice which records the applicant was in Blacktown Hospital for 1 night spanning 21 to 22 December 2018.  The invoice does not evidence more than the simple fact of a hospital stay.  No cause is specified to corroborate the applicant’s explanation for the hospitalisation.   If this invoice was provided to add credence to the earlier explanation of seizures, then given I have accepted that the applicant had an alcohol-induced seizure, it does not take matters much further.  If it is provided to explain why the applicant could not have applied sooner than he did for reinstatement, then it is negligible and immaterial given that it accounts for only 1 day as against a period of approximately 4 years between the dismissal and the application for reinstatement.

15. At [6] of the Applicant’s Affidavit he makes clear that he decided not to attend the first Court date on 3 August 2017.  He says he was still not feeling well and was worried he might suffer another seizure and fall.  While I accept that he may not have felt well, given the seemingly elective circumstances which led to this, it is not really an acceptable excuse for not going to Court.  Having then chosen to not attend Court, the applicant did not take steps on the morning of 3 August 2017 to contact the solicitors for the first respondent.  Instead, he took the risk of remaining silent as well as not attending the first Court date and did not write to the first respondent’s solicitors until 4 August 2017 when  he sent that letter with the medical certificate by regular post (and not, for example by email which would have been considerably quicker given the urgency of the situation).

16. The non-attendance on 3 August 2017 is not strictly the explanation with which the Court is concerned for the purposes of the reinstatement application, except to the extent that it might dovetail into the non-attendance on 10 August 2017.  The relevant consideration is the explanation for the non-attendance which led to the dismissal and in the instant case, that was the failure to attend on 10 August 2017, being the occasion at which the proceedings were ultimately dismissed. 

17. The applicant claims that he was not made aware of the fact that the Court had adjourned his matter for 1 week consequent on his first non-attendance on 3 August 2018.  The first respondent has placed evidence before the Court which demonstrates that emails to his gmail address were sent to the applicant in respect of his non-attendances on each of 3 August 2017 and 10 August 2017, and I accept they were sent. 

18. The applicant says he did not receive either of those emails.  Against the evidence provided to me by the first respondent, and applying a presumption of regularity, I find it highly unlikely that the applicant did not receive either email given that they were sent to his gmail address (and I note his most recent correspondence with the Court in relation to the reinstatement application (including his adjournment request) were sent from that account).  It was the applicant’s responsibility to check his emails given that he had provided his gmail address for the purpose of the proceedings. 

19. On the applicant’s own evidence he knew about his first Court date on 3 August 2017 and elected not to attend.  It appears from the material before me that despite having elected to not attend Court and having written to the solicitors for the Minister on 4 August 2017, the applicant took no steps to follow them up by telephone or email despite the fact that according to him the Minister’s solicitors had not responded to his correspondence of 4 August 2017, nor to contact the Court immediately after 3 August 2017 to find out the outcome of the first Court date by reason of his non-attendance.  Had he done either of these things, the applicant would likely have been additionally informed he needed to attend on 10 August 2017.

20. To the extent that the applicant implies that the first respondent did not comply with Registrar Morgan’s orders made on 10 August 2017 that the dismissal orders be served on the applicant together with a copy of (then) r 16.05 of the former Rules, I am satisfied that the first respondent did comply with Registrar Morgan’s orders. 

21. To the extent that the applicant asserts he did not receive any correspondence regarding his non-attendance on 3 August 2017 and that this led to his non-attendance on 10 August 2017, I do not consider this to be a persuasive explanation for the reasons set out above, and it weighs against reinstatement in and of itself, as well as when considered by reference to the length of delay. 

22. Having accepted that the first respondent’s solicitors sent the applicant the correspondence which forms Annexure EJTS-3 to the Taylor Affidavit, I find that the applicant was made aware of the directions hearing on 10 August 2017, as well as the consequences of his non-attendance and, for whatever reason, chose to again not attend. 

23. To the extent that the claim to have received no correspondence goes towards attempting to explain why it was that it took him almost 4 years thereafter to apply for reinstatement, I am equally unpersuaded.  The applicant goes on to assert that he waited from August 2017 until June 2021 to hear from the Court about the progress of his case.  It was apparently only when he reached a period of what he describes as “extensive silence” that he took steps to consult a lawyer.

24. Given the applicant had written to the solicitors for the first respondent the day after his non-attendance, it seems odd that he then waited for a period of almost 4 years to then ascertain the status of his proceedings.  It was the applicant’s responsibility to prosecute his own proceedings yet he appears have approached the litigation less than diligently, even on his own version of events. 

25. Moreover, given the anomalies I have noted above in relation to the dates of the drafting and execution of the Applicant’s Affidavit and the proposed Amended Application, there is also a period of approximately one month from the time his Affidavit was completed (late July 2021) and the filing of the reinstatement application on 30 August 2021.  On any view, this adds to the impression that the applicant has been less than conscientious or expeditious in the management of his proceedings or the timely pursuit of reinstatement.

26. A delay of 4 years between the time of dismissal and the making of a reinstatement application is significant.  Such an extraordinary period of delay can be the determinative factor in refusing to exercise a discretion, even if the underlying application has merit: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 per Wigney J at [38]. It is also the case that the longer the delay, the more persuasive the explanation for it needs to be: see Jess v Scott (1986) 12 FCR 187, which was considered in a migration context in Tran (supra).  In citing these decisions I accept that they were rendered in the context of an extension of time, which is slightly different insofar as it pertains to a statutorily set limitation.  However, much like Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15] to [17] per McHugh J which was also delivered in relation to the extension of an application period, because there is an overlap between the relevant discretionary factors to be considered in applications for extension of time and applications for reinstatement, such authorities can be apposite: see AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.

27. Given the very long period of delay and on the material before me, I am not persuaded that the explanation for failing to attend on 10 August 2017, nor the delay in seeking reinstatement, is sufficiently persuasive as to warrant the exercise of discretion in favour of the applicant to reinstate.  Overall, I find that these factors weigh against reinstatement.

    Prejudice

28. The first respondent does not claim to suffer prejudice other than costs if the application were to be reinstated, but says that the absence of prejudice to the respondent is not itself sufficient or capable of supporting a conclusion that an order for reinstatement should be made:  see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at 349 citing Lucic v Nolan (1982) 45 ALR 411 at 416 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519; Muzammil v Minister for Home Affairs [2019] FCCA 1564 at [46].

29. There is a significant public interest in the finality of administrative decisions (see Re Commonwealth; Ex Parte Marks (supra) at [15] to [17] per McHugh J) and a reinstatement application necessitates a further expenditure of public funds in circumstances where there is a reasonable expectation that the matter was at an end, especially when the applicant waited almost 4 years from the dismissal of his proceedings before seeking reinstatement. 

30. However, where the Minister does not make a specific claim to be prejudiced, I will weigh the question of prejudice as being neutral to the question of the exercise of the discretion to reinstate.

    Merits

31. The proposed Amended Application dated 1 August 2021 (though annexed to the Applicant’s Affidavit which was executed in July 2021), has the effect of abandoning the originating grounds of review, with a view that if I were to make orders in accordance with r 17.05(2)(a), I would also therefore grant leave to the applicant to rely on this document. Given the proposed wholesale abandonment of the original grounds of review I will, for the purposes of assessing the merit of the substantive grounds, consider the proposed amended grounds only.

32. The proposed grounds of review are as follows (omitting particulars):

    1.The IAA erred when it concluded “it was evident that the applicant have [sic] provided inconsistent evidence regarding his claimed periods of detention.”

    2.The IAA erred when it concluded “Neither of these descriptions is consisted with his earlier claims TI and TT were shot”

    3.The IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim

    4.In the alternative to 3, the IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim.

1. The applicant contends that each of these errors is material, albeit the written submissions made for him do not deal with this in any detail. 

2. In assessing the prospective merits of the grounds, the Court is not determining whether or not a jurisdictional error is present, but rather whether the ground/s enjoy a standard of being ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or having a ‘reasonable prospects of success’.  However the standard is described, it is accepted that the hurdle is relatively low: DHX17 (supra)at [76].

   Proposed ground 1

3. By the particulars to this ground the applicant seeks to challenge the finding of the Authority at [22] that the applicant provided inconsistent evidence about his claimed periods of detention.  The paragraph in question provides as follows:

   From the above it is evident the applicant have provided materially inconsistent evidence regarding his claimed periods of detention. He has variously claimed to have experienced between two and four periods of detention. The consistent periods being prior to his going to Qatar and prior to his coming to Australia. However, there have been material differences too as to the dates and lengths of those detentions and whether he was detained by the army, police or STF. I consider these inconsistences undermine the credibility of his claims he was detained in the past. The applicant claimed the army came to his home after shooting his brothers and threatened the applicant’s wife. His evidence in the SHEV application form is he met and married his wife in 2007, yet his brothers were killed in 1997 and 1999. The applicant therefore lacks credibility the army could threaten his wife 20 and 18 years before he met her. The timing of his claimed detention in 2006/2007/2008 is inconsistent too with his travel to Qatar in March 2008.

4. At hearing, Counsel for the applicant submitted that the Authority’s specific use of the term “inconsistent” means something which does not sit with something else because there is a conflict and that in relation to the paragraphs which lead to the conclusion in [22] of the Authority’s decision there is little, if any, actual conflict. The applicant says that the periods of detention were “merely different periods presented in a piecemeal fashion, but which are not shown to be incorrect”.   The applicant asserts that in describing the periods as ‟inconsistent”, the Authority erred, albeit without specifying how this constitutes an error nor even so, how it would be material. 

5. The first respondent says that proposed ground 1 does nothing more than express disagreement with the Authority’s adverse findings and that while adverse credibility findings which result in a decision maker rejecting a visa application can constitute a determination based on illogical or irrational findings or inferences of fact (citing CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [43], which in turn cites SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] to [26]), the Authority’s reasons reflected concerns about the applicant’s claims which when taken together established a cogent and rational basis for its adverse credibility findings and rejection of the applicant’s claims.

6. The first respondent says that the Authority identified numerous inconsistencies in the applicant’s evidence in relation to the number of times he had been detained, for how long he was detained and who had detained him.  The first respondent also relies on the finding of the Authority at [23] where it expressed concern about the applicant’s claim his wife had arranged his release by paying a ransom in 2001, finding that this assertion lacked credibility given his own evidence was that he did not meet her until six years after that.

7. The first respondent says that the findings of the Authority in the instant case were available to a reasonable decision maker on the basis of the material before it and fail to demonstrate the requisite “extreme” illogicality or irrationality in the Authority’s findings, citing CQG15 (supra) at [60].

8. In my view the findings of the Authority at [22] were open to it on the material before it.  In fact, the Authority actually accepted that there were consistent periods of detention, namely the period before he went to Qatar and prior to coming to Australia.  It went on to say “[h]owever, there have been material differences too as to the dates and lengths of the detention…”  Rather than suggesting that the periods were inconsistent, the Authority was suggesting that the applicant’s accounts were inconsistent, and that description was certainly open to it. 

9. While the applicant asserts that an error is extant, he has failed to identify how this would constitute a jurisdictional error.  To the extent that the applicant is alleging there is an error of fact, I am not satisfied that this would be reasonably arguable, much less that it was an error of fact which could reach a level of being jurisdictional or material: see CRU18 v Minister for Home Affairs (2020) 277 FCR 493 at [29]-[31] per Wigney, Jackson and Snaden JJ. To the extent the first respondent has construed the potential jurisdictional error being alleged as one of illogicality or irrationality, I agree that on the material before the Court, there is no reasonable prospect of this being arguable.

10. In oral submissions, Counsel for the applicant contended that the error was also material and that this should be accepted on the basis that the Authority’s own expression in [21] was that there were “material differences” in the applicant’s account. 

11. The onus for establishing the question of materiality falls to the applicant: see MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [35], [39] and [41]-[60] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [46]. It is not for the first respondent to have to disprove materiality: see MZAPC (supra) at [41]-[60]. Aside from the argument above, this issue was not further advanced by the applicant beyond a bare claim of materiality.

12. I am not satisfied that the use of this expression was a term of art in the sense of materiality identified in SZMTA (supra) at [127] and the cases which have followed it, namely whether an error could realistically have deprived the applicant of a successful outcome if remitted to the Authority.  The word ‘material’ in paragraph [21] of the Authority’s reasons should not be imbued with SZMTA significance given that the decision of the Authority was made 2 years before SZMTA was delivered by the High Court and accordingly the term was not used with the benefit of that decision.  I understand the Authority as meaning that there were relevant differences between the applicant’s accounts, not that its finding about those specific differences were of such significance that its ultimate decision turned on them in some way.  

13. For the foregoing reasons, I am not satisfied that proposed amended ground 1 enjoys sufficient merit even at an impressionistic level such that reinstatement would be warranted so that it could be argued and determined at a final hearing.

    Ground 2

14. By this proposed ground, the applicant again takes issue with a finding of the Authority at [21] in relation to inconsistency, being a conclusion that “Neither of these descriptions is consistent with his earlier claims TI and TT were shot.” 

15. Paragraph [21] of the Authority’s reasons provides as follows (emphasis added):

    In a statutory declaration the applicant provided after the SHEV interview in response to questions the delegate put to him under s.56 (“the post-interview statement”), the applicant claimed the body of TI was found bound and with evidence of being torture [sic] prior to his death from a head wound. The body of his brother TT was found limbless. Neither of these descriptions is consistent with his earlier claims TI and TT were shot. However, the post interview statement claims are consistent TT and TI were killed, along with many other Tamil victims when there was fighting between the Sri Lankan army and the LTTE and that neither TI nor TT were combatants.

16. Relevant to this proposed ground are:

    (a)a Statutory Declaration made by the applicant on 16 February 2016 (February declaration) and submitted with his SHEV application (CB 70) by which the applicant stated ‘My other two brothers [TT] and [TI] were shot and killed by the Sri Lankan army in Kumarapuram Paranthan, Kilinochchi District, Sri Lanka on 1^st October 1999 and in Killinochichi District, Sri Lanka on 5^th May 1997 respectively.”  Later under a heading “Reasons for leaving Sri Lanka” the applicant stated “When I resided in Sri Lanka, I lost two of my brother and they were taken by the army for being Tamil and seriously tortured and shot by them”;

    (b)the letter from the delegate to the applicant dated 2 August 2016 and sent following his SHEV interview which included the following question (CB 114):

    You stated in your written application that your brothers [TT] and [TI] “were taken by the army for being Tamil and seriously tortured and shot by them”. However in the Protection Visa interview you stated that they were killed as non-combatants in an area where a battle was taking place. I asked a clarifying question “Were they executed by the authorities?” You stated “No”.

    In the Protection Visa interview you made no mention of them being tortured.

    Please confirm what actually happened to your brothers?

    Why is there this inconsistency in the information provided between the written application and the interview? This question is in regard the claim that they were tortured.’;

    (c)the post–interview statement referred to in paragraph [21] of the Authority’s reasons, being a Statutory Declaration made by the applicant on 12 August 2016 (August declaration) and submitted to the delegate in response to a letter of 2 August 2016 inviting him to comment on information (see [4] above) (CB 117 to 119). 

17. Under a subheading “[TI]” in the August declaration the applicant said as follows:

    On 5 May 1997, after 2PM [TI] was travelling with a bicycle to Paranthan Town, Kumarapuram, Kilinochi to buy food…He never retuned and we assume he was taken by the Sri Lankan Army (SLA)…He was aged about 21 years old.  My family began searching for him but around 10AM on the 6 May 1997, my sister [PS] and my brother-in-law found [TI’s] body inside drainage at the side of A9 Highway.  [TI] was tied both of his hands behind with his bare body and thrown into the drainage.  His body was covered in cuts and heavily bruised all over his torso, arms and legs.  The back of his head had been hit with a blunt object and there was a huge amount of blood covering the back of his head. This is how we knew he was tortured before he was killed.  [TI] was not involved with the LTTE or SLA.  He has never been charged with any crimes but much like many young Tamils at that time and location, they were targeted and killed by the SLA.

18. Under a subheading “[TT]” in the August declaration the applicant said as follows (errors in original):

    On 1 October 1999, [TT] was shot and killed at A9 Highway road in front of Kilinochi Kandasamy Temple, during the battle for Kilinochi and Oddusuddan.  He went to meet his friend about mid-day at Kilinochi Kandasamy Temple…In the battle between SLA and LTTE, SLA used multi-machine guns, mortars, Helicopters and war planes to attack not only LTTE, but also all the Tamil people.  On that day there were about 100 Tamil civilians killed in Kilinochi by the bomb shelling and machine gun fire by SLA, including my brother.  On the next day, when my sister, brother-in-law and myself went to look for him after hearing about the killings he was found dead in front of Kilinochi Kandasamy Temple at A9 Highway.  His limbs had been shot off.

    [TT] was also not involved with LTTE or SLA.  He was not charged with any crimes.

19. The written submissions advanced for the applicant to the Court in relation to this are:

    a.The IAA at [21] were comparing the claim that „the body of TI was found bound and with evidence of being torture (sic) prior to his death from a  head wound. The body of his brother TT was found limbless‟, with his earlier claims that TI and TT were shot [at page 1 Statutory Declaration].

    b.The claim in his Statutory Declaration dated 16 February reads: „I lost two of my brothers and they were taken by the army for being Tamil and seriously tortured and shot by them.‟ It was clearly possible the brothers could have been shot and the other wounds also inflicted – either before or after the shooting.

    c.At page 1 in his other Statutory Declaration dated 12 August 2016, the Applicant further stated, [TI]…. The back of his head had been hit with a blunt object and there was a huge amount of blood covering the back of his head.‟ This clearly supports his claim that TI was shot since the amount of blood was consistent with a gunshot blast, and in any event would have obscured whether the head injury was caused by a gunshot blast or a heavy object.

    d.Therefore the IAA finding was erroneous.

20. Again while alleged the finding was erroneous the applicant does not say how this constitutes a jurisdictional error and if so, why this would be material.

21. The first respondent submits that this ground should fail for the same reasons as proposed amended ground 1 but that even if the Court were to accept that the impugned finding at [21] was illogical or irrational, the error would not have been material to the decision and could not realistically have resulted in a different decision being made because the Authority ultimately found the applicant had provided generally consistent claims about the deaths of his brothers and accepted that his brothers were killed as non-combatants ([26]): see SZMTA (supra) at [45]-[46] and MZAPC (supra) at [39].

22. In my view, both this ground and the submissions in support rely on taking aspects of the Authority’s findings out of context.  The discrepancy in the applicant’s claims were succinctly expressed by the delegate in the invitation to comment issued on 2 August 2016.  At its core the discrepancy was not about the specific manner in which TI and TT were killed, but rather the question of whether their respective killings were targeted in the sense they were executed by the authorities versus whether they were caught in cross-fire as non-combatants in a firefight.  The applicant’s proposed ground 2 seeks to construe the relevant findings of the Authority as being directed to whether being shot is being inconsistent with being tortured and to minutiae such as whether a head injury of TT was consistent with being shot.

23. At hearing I asked Counsel for the applicant whether, even if I were to accept that the error contended for by the applicant was present, it was material insofar as there could there have been a different result to this review if the Authority had not so erred, such that there would be merit to this ground. Counsel for the applicant conceded that taken as an individual error of fact, it would probably not give rise to a jurisdictional error, but taken together with other factual errors it would.

24. In light of that concession and given that the Authority’s findings at [21] (and [26]) appear to have been open to it on the material before it which included each of the documents set out at [77] above, there is no reasonably arguable ground even at an impressionistic level as advanced by proposed ground 2 which would warrant reinstatement.

    Grounds 3 & 4

25. It is appropriate to consider these proposed grounds together. They are identical but for their particulars and allege that the Authority erred when it was not satisfied there were exceptional circumstances to justify it considering the CID claim by reference to s 473DD(b)(ii). The particulars to ground 4 are raised in the alternative to the particulars to ground 3 and allege that even if the Authority did purport to consider the CID claim against s 473DD(b)(ii) then it either:

    (a)asked itself the wrong question by failing to consider whether the CID claim was “credible personal information” which may have affected the applicant’s claims had the information been known; or

    (b)even if the Court were to find that the Authority’s statement that “the applicant does not explain…why the CID claim was not known [and] would affect consideration of the applicant’s claims” was intended to address s 473DD(b)(ii), it in any event constructively failed to consider the CID claim or acted unreasonably because the CID claim was material to the applicant’s “overall claim” that the CID suspected him to be a former LTTE member.

26. It will be recalled that the CID claim was made by the applicant on 3 October 2016 and that the applicant said that it was recent information which he could not previously have provided, being that while seeking medical treatment at a hospital in Northern Province, his brother and two others were arrested and questioned by the CID and that as a result his brother told him not to return because the CID were looking for him by reason of his being an LTTE member.

27. The relevant finding of the Authority is at [8] where it found (errors in original):

    The IAA submission in part raises new claims that he was unable to provide to the delegate. While his brother (who I surmise to be TJ) was seeking medical treatment at a hospital in Northern province, the brother and two other men were arrested by the Criminal Investigation Division (“CID”) and taken for questioning. The officers told the brother to seek medical attention from their doctors, that they had the records of the applicant’s previous detentions, were aware the applicant had gone overseas and were awaiting the applicant’s return. The applicant’s brother told him not to return to Sri Lanka as the CID remain searching for him as a former LTTE member (“the CID claim”).  I consider the CID claim is new information. In the IAA submission the applicant does not explain why he was unable to provide the CID claim to the delegate or why the CID claim was not known at would affect consideration of the applicant’s claims. He merely asserts he was unable to provide the CID claim. He does not explain when or how his brother contacted him about the CID claim. I am not satisfied there are exceptional circumstances which justify my considering the CID claim and I have not had regard to it.

28. The first respondent properly concedes that the findings of the Authority at [8] are “not strictly compliant with the approach articulated by the High Court” in AUS17 Minister for Immigration and Border Protection (2020) 269 CLR 494 where it was found that the Authority is required to evaluate new information against the criteria in s 473DD(b)(i) and (ii) before reaching a conclusion, under s 473DD(a), on whether exceptional circumstances existed to justify considering the new information as part of its review.

29. Section 473DD provides that:

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

30. Having been made in March 2017, without the benefit of the High Court’s decision in AUS17 (supra) it is not surprising that the Authority did not specifically apply the AUS17 approach by expressly and separately addressing each of the limbs of s 473DD(b). However, in my view, the Authority did give consideration to s 473DD(b)(ii), which is reflected in its consideration of whether the CID claim “would have affected consideration of the referred applicant’s claims”. While this did not fully reflect the language of the subsection insofar as it does not expressly set out a consideration of whether the CID claim was “credible personal information”, in my view the reasons of the Authority did engage in substance with s 473DD(b)(ii).

1. Even if I were wrong in that regard and [8] of the Authority’s reason could give rise to a jurisdictional error as contended for by the applicant, the first respondent says that in any event the real question for the Court would be whether the failure to consider the new claim against s 473DD(b)(ii) was material, such that if the error (if established) could not have been material, then there would be no utility in reinstating the matter so that the ground can be agitated.

2. The first respondent says that assuming the Authority had been satisfied as to both limbs of s 473DD and then proceeded to consider the CID claim, it is exceptionally difficult to see how this could have resulted in a successful outcome for the applicant because on the evidence before it the Authority could not have accepted the CID claim because:

   (a)the evidence indicated that while a number of tragedies had befallen the applicant’s family during and in the aftermath of the Sri Lankan civil war, his family was not specifically targeted by the Sri Lankan authorities;  

   (b)the applicant’s own evidence was that neither he nor any of his family members were members of the LTTE, which undermined his claim that they were targeted by the Sri Lankan authorities;

   (c)while that Authority accepted that the applicant’s brother TJ (whom, because the applicant had not even provided that much detail in making the claim, the Tribunal had to surmise was the source of the information) had ongoing reporting requirements, the Authority found that the applicant had exaggerated that the consequences of this was that his family remained a target of the Sri Lankan authorities; and

   (d)the applicant’s travel to Qatar between March 2008 and June 2010 - on a valid passport which had been  issued to the applicant lawfully - was inconsistent with his claims that he was a person of interest to the Sri Lankan authorities and further supported the Authority’s findings that the applicant had “fabricated” his claims to be a person of interest to the Sri Lankan authorities (at [27] to [28]).

3. In my view even if the applicant were able to establish a jurisdictional error constituted by the Authority’s failure to properly apply s 473DD(b), I agree with the submissions of the first respondent that it was not material insofar as it could not have realistically resulted in a successful outcome before the Authority, having regard to the entirety of the findings and reasons and the context of the new information within them.

4. For these reasons I am of the view that neither of proposed grounds 3 or 4 have a reasonable prospect of success such that the utility of their consideration weighs in favour of the matter being reinstated so that they could be heard and determined on a final basis. 

   CONCLUSION

5. The lack of a satisfactory explanation for the applicant’s non-attendance at the (already once adjourned) directions hearing on 10 August 2017, the almost 4 year delay in seeking reinstatement (and unpersuasive explanation for that delay also) and the fact that the proposed grounds of review advanced for the applicant are not reasonably arguable weigh against the discretion to reinstate the proceedings.  In addition, the lack of prejudice to the Minister weighs as a neutral factor.  I am overall satisfied that the interests of the administration of justice do not warrant that the orders made by Registrar Morgan on 10 August 2017 should be set aside.

6. Accordingly, the application in a proceeding filed on 30 August 2021 is dismissed.

7. I will hear the parties on costs.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       25 February 2022