Clu18 v Minister for Immigration
[2020] FCCA 2281
•20 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLU18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2281 |
| Catchwords: MIGRATION – Protection visa – application for reinstatement – decision of the Immigration Assessment Authority – factors to be considered in determining whether substantive application should be reinstated – no arguable case that IAA fell into jurisdictional error – reinstatement refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), pt.7AA, div.3, ss.36, 46A, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB |
| Cases cited: CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | CLU18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 255 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 August 2020 |
| Date of Last Submission: | 18 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 August 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application in a case dated 27 July 2020 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 255 of 2018
| CLU18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13 May 2018, the applicant applied to this Court for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 24 April 2018.
The matter was listed for hearing on 26 June 2020. On that occasion, the applicant failed to attend. The Court attempted to contact the applicant on his mobile telephone number. It appears that the number provided was disconnected. Accordingly, the Court made orders in the following terms:
1. The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
3. The applicant pay the first respondent’s costs fixed in the sum of $6,000.
On 27 July 2020, the applicant filed an application in a case in which he sought an order that the Court:
REINSTATE THE CASE FOR A FRESH HEARING
The Court interprets the above to be an application to set aside the orders made on 26 June 2020 pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
These reasons for judgment address whether the Court should exercise the power under r.16.05(2)(a) of the Rules.
Background
The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 24 November 2012 (Court Book (“CB”) 124).
On 3 May 2016, the applicant was advised that the first respondent (the “Minister”) had lifted the bar under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 15-19).
On 11 May 2017, the applicant applied for the visa (CB 20-99). The applicant claimed that he faced harm as a result of his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (the “LTTE”). The applicant claimed that his father was suspected of being involved with the LTTE and that the applicant had been arrested, detained and beaten by the Sri Lankan authorities because of his father’s alleged involvement. The applicant identified as a Tamil from the Northern Province (CB 62-67).
The applicant attended an interview with the delegate on 15 August 2017 (CB 110-120).
On 18 August 2017, the delegate refused to grant the visa (CB 121-136).
The applicant’s matter was referred to the IAA on 4 September 2017 (CB 137-150).
On 29 September 2017, the applicant’s representative provided a submission to the IAA (CB 161-174).
On 24 April 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 180-195).
IAA’s Decision
It is not disputed that the applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s.473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
Here, the IAA’s decision is 16 pages long and spans 46 paragraphs.
The Minister’s submissions (at [14]-[26]) accurately summarise the IAA’s decision. The Court adopts those submissions as its own (with some amendments) as follows.
The IAA referred to the applicant’s representative’s submission and stated (at [4]-[5]) that:
a)to the extent that the submission engaged in argument with the delegate’s decision based on information that was before the delegate, the IAA had had regard to it; and
b)in relation to the country information that was referred to in the submission (all of which was published prior to the delegate’s decision) there were no reasons provided as to why this could not have been provided before the delegate’s decision. Nor was it credible personal information that was not known and may have affected the consideration of the applicant’s claims. Furthermore, the IAA considered that it was not apparent that there were any exceptional circumstances to justify considering the information. The IAA did not, therefore, consider any of the country information.
The IAA then summarised the applicant’s claims (at [6]).
The IAA was satisfied that the applicant was a Tamil of the Hindu faith from the North Western Province of Sri Lanka (at [7]).
The IAA then summarised the applicant’s claims about events that occurred from 1996 to 1997 (at [8]-[9]). The IAA noted that the applicant was two and a half years old when his father was detained by the Sri Lankan Army. The IAA was willing to accept that the applicant was told of the events leading up to his father’s detention by his parents when he was old enough to understand what had happened (at [10]).
The IAA placed no weight on the document provided by the applicant regarding his father’s detention because the document contained no official letterhead or seals to indicate that it was issued by a court in Sri Lanka and country information confirmed the prevalence of document fraud in Sri Lanka (at [11]). However, the IAA was willing to accept the applicant’s claim that his father was detained by Sri Lankan authorities and held in jail from April 1996 to September 1997 (at [12]).
The IAA was also willing to accept the applicant’s evidence that the Criminal Investigation Department (the “CID”) visited his mother while his father was in detention and that the CID had visited his father after his release. However, the IAA did not accept that the applicant’s family was visited every 2 to 3 months in the years following. The IAA considered this implausible and noted that there was a lack of detailed or persuasive information relevant to that claim (at [13]). The IAA also found it implausible that the CID had only questioned the applicant because they had been unable to obtain information from his father and because his father was “old” (noting that the applicant’s father was approximately 41-44 years of age at the relevant time). The IAA considered it “telling” that the applicant’s father was never arrested or detained at any stage after 1996. To the IAA this indicated that he was not of serious concern to the CID (at [14]-[15]).
The IAA considered that the applicant’s failure to advance the claim that he was detained in 2010 during his arrival interview to be inconsistent with his evidence as advanced in his visa application and interview with the delegate (at [16]). The IAA found that this inconsistency undermined the credibility of the claim. In light of this, and the fact that the applicant was only able to provide very general information and could not say when the incident took place, the IAA was not willing to accept that the applicant was detained in 2010 (at [16]). The IAA also did not accept that the CID came to the applicant’s house and questioned him between 2010 and August 2012 (at [17]).
The IAA noted that the applicant had made claims that his detention of 14 days following his failed attempt to leave Sri Lanka in October 2012 was for 4 days more than other passengers because the CID discovered his background and the fact that his father’s case was still pending with the CID (at [18]). The applicant also claimed that he had been beaten and threatened by the CID prior to his release, that the court released him on bail with a hearing date set for January 2013 and that his parents’ lawyer was able to get the charges dismissed (at [19]-[20]). The IAA accepted that the applicant had attempted to depart by boat and that he had interacted with the authorities when the boat was stopped. However, the IAA did not accept that the applicant was singled out and detained for 14 days or that he was physically mistreated or threatened by the CID before his release. The IAA made that assessment on the basis of the relevant country information, inconsistencies in the applicant’s evidence, the applicant’s failure to mention any of these claims at his arrival interview (other than that he was detained for 14 days) and the lack of detailed information or documentary evidence to support these claims overall (at [21]).
As the IAA had not accepted that the applicant was mistreated by the authorities, the IAA did not accept his claim that he could not leave the house after this incident because of the injuries he had sustained from such (at [22]).
The IAA did not accept that the applicant’s mother had received a call before he left which motivated him to depart Sri Lanka in 2012 (at [23]). The IAA also did not accept that the CID had visited the applicant’s home and threatened to arrest him if he returned (at [24]). The IAA was of the view that both claims were advanced to enhance the applicant’s claims for protection.
The IAA was of the view that the applicant’s father was not targeted by the CID from 1997 onwards because the CID did not have any concerns about him. The IAA also found it implausible, and therefore did not accept, that the authorities prevented the applicant’s father from departing Sri Lanka to work overseas (at [25]).
The IAA noted that there was no credible information that the applicant has a profile with the authorities because of his father or that his relationship with his father would give rise to a real chance of adverse treatment from the Sri Lankan authorities on return (at [28]). After referring to the country information (at [29]-[30]), the IAA stated that it was not satisfied that the applicant faces a real chance of harm as a result of being a Tamil male from the North Western Province (at [31]).
At [32], the IAA accepted that the applicant had illegally departed Sri Lanka in breach of the Immigrants and Emigrants Act 1949 (SL) (the “I & E Act”). The IAA was not satisfied that the applicant would face a real chance of harm for this reason and was also satisfied that the I & E Act was a law of general application (at [39]).
The IAA accepted that, as a returning asylum seeker from Australia, the applicant would be subject to scrutiny on arrival as a part of routine immigration processing (at [33]). However, the IAA referred to country information (at [34]) and found as follows:
35. I have accepted that the applicant was arrested and detained in October 2012 following a failed attempt to depart Sri Lanka. I have not accepted that he breached bail conditions, or that an arrest warrant was issued against him or that there have been any adverse consequences for his parents or siblings since his departure from Sri Lanka on 10 November 2012. There is no evidence before me that the authorities have any ongoing interest in the applicant for any reason. I have considered whether the fact that he was interdicted and detained in October 2012 would result in him facing a greater or differential level of scrutiny on return however the country information before me does not indicate that this would be the case.
The IAA was satisfied that the applicant would be detained at the airport for immigration and security processing and that he might be held in prison for a short period of time while his family travelled to collect him. The IAA also accepted that the applicant might face a fine for his illegal departure. However, the IAA was not satisfied that the questioning, detention and fine would amount to “serious harm” (at [36]-[37]). The IAA noted that there was nothing to suggest that the applicant had any outstanding court orders or that he was involved in a people smuggling venture (at [38]).
The IAA was not satisfied that the applicant faced a real chance of persecution because he departed Sri Lanka illegally (at [40]).
The IAA concluded that the applicant did not meet s.36(2)(a) of the Act (at [41]).
The IAA relied on its findings in relation to the refugee assessment to determine that the applicant did not face a real risk of significant harm as a Tamil male from the North Western Province whose father was detained in 1996/97 on suspicion of supporting the LTTE, for having been detained after an attempt to depart Sri Lanka illegally and for having sought asylum in Australia (at [44]).
At [45], the IAA found:
I accept that as a person who departed Sri Lanka illegally, the applicant will be detained at the airport for questioning and immigration and security checks were he to return to Sri Lanka, and that he may be charged with an offence under the I&E Act. I also accept that he may be remanded in custody for questioning, face a brief period of detention and a fine. Having regard to the definition of “significant harm” in s.36(2A) of the Act, I am not satisfied that any arrest, detention (including any brief period of detention in poor prison conditions), fine or investigation that the applicant may experience as a result of his illegal departure from Sri Lanka would constitute “significant harm”. I am not satisfied that the acts or omissions of the Sri Lankan officials in this process are intended to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation, as is required by the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment. The treatment does not consist of the death penalty or arbitrary deprivation of life, nor am I satisfied that there is a real risk he will be subjected to torture.
The IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm (at [46]).
The IAA affirmed the decision not to grant the applicant the visa.
Proceedings in this Court
The applicant seeks reinstatement of his application dated 13 May 2018. As noted above, that application was dismissed pursuant to r.13.03C(1)(c) of the Rules because the applicant did not attend a hearing before this Court on 26 June 2020.
The materials before the Court relevant to the reinstatement hearing included the applicant’s affidavit filed in support of the reinstatement application affirmed 27 July 2020, the applicant’s substantive judicial review application filed 13 May 2018, a Court Book numbering 199 pages (marked as Exhibit 1), a written outline of submissions from the Minister dated 27 February 2020 and correspondence from the Minister which shows that the applicant was sent a copy of the Court Book and a copy of the Minister’s written submissions (Exhibit 2).
The applicant appeared before the Court without legal representation. He was assisted by a Tamil interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. He advised that he had a copy of the Court Book with him but did not have a copy of the Minister’s written submissions. The Court notes the correspondence in Exhibit 2. That correspondence shows that the applicant was sent a copy of the written submissions – via both regular slow mail and electronically. It appears the submissions that were sent via regular mail were “returned to sender”. Noting that the applicant had been sent the written submissions in digital form but did not have a copy of those submissions with him, the Court asked counsel for the Minister to summarise those submissions to the applicant in detail. The Court is satisfied that the applicant has been given a reasonable opportunity to prepare for the hearing and that he understood what was required of him. He was also able to outline his main contentions with clarity.
Noting that the applicant was unrepresented, the Court explained that the matters it generally considers in a reinstatement application include, but are not limited to:
a)whether there is a reasonable excuse for the party’s absence from the hearing at which the substantive application was dismissed;
b)the length of any delay in seeking reinstatement and the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider whether that prejudice can be mitigated by other relief such as costs; and
c)whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.
(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530)
The Court took the applicant through each of these matters and will outline the applicant’s submissions, and the Minister’s submissions in response, below.
Explanation for Non-Appearance
The applicant’s explanation for his non-appearance on 26 June 2020 appears to be set out in the applicant’s affidavit as follows:
…
3. I understand little of the English Language, I don’t have adequate knowledge of digital technology.
4. Therefore I was not able to be present at Court hearing on 26 of June 2020.
5. Consequently, my case was dismissed without the hearing.
(without alteration)
The applicant does not seem to dispute that he was aware of the date and time of the hearing. Rather, he states that his lack of knowledge in relation to the use of digital technology was the reason he failed to attend. At the hearing, the applicant stated he tried to connect to the video-link but was unable to do so.
It is agreed that the applicant is not fluent in the English language. It may well be that this made it difficult to do (digitally) what was required of him on the day of the hearing of his substantive hearing.
Given the current health protocols before the Court and the difficulties this poses for some applicants, the Court accepts the applicant’s explanation as satisfactory. This weighs in favour of reinstating the substantive application.
Delay and Prejudice
The delay in seeking reinstatement is just over one month. This is not significant and the Court has no reason to believe that the delay is evidence of an attempt to prolong or frustrate the final disposition of the matter.
The Minister was not required to prepare additional written submissions for the hearing of this matter. The Court does not consider that the Minister will suffer any prejudice in preparing for this reinstatement hearing that cannot be mitigated by a costs order.
These matters also weigh in favour of reinstatement.
Whether the applicant has a reasonably arguable prospect of success in relation to the substantive application
Whether the application should be reinstated will be determined by whether there is any arguable prospect of success in relation to the substantive application. As explained by Justice Mortimer in CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4]-[6], the threshold for whether there is any merit in the substantive application is whether the application is “arguable” in the sense that it is not fanciful, illogical, impermissible or devoid of merit. A level of rationality and a sufficient basis in the materials for the argument to be advanced is all that is necessary to warrant reinstatement. Hence, the question here is whether, on an impressionistic basis, there is any arguable case of jurisdictional error in the IAA’s decision.
The applicant’s judicial review application contains three grounds of review as follows:
1. Jurisdicational error.
2. Bias based on conscious or unconscious prejudie by ignoring revelent materials.
3. Identifying a wrong issue on a wrong question.
(without alteration)
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained what this Court can and cannot do. It emphasised that, in the context of a reinstatement application, the applicant needed to direct the Court to whether there was an arguable case that the IAA had fallen into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 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 & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision in assessing whether there was an arguable case that an error arose: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the applicant to explain to the Court what “mistakes” he thought the IAA had made. In effect, the applicant argued that the IAA failed to assess him as an individual. Rather, the IAA made a decision on the basis of its perception of whether other people might be harmed. The applicant stated that, in general, the IAA was wrong to find that there are no problems in Sri Lanka because, as an individual, he will be at risk if he returns to Sri Lanka.
The Court will address these submissions below within the context of ground 1.
Consideration
Ground 1
Ground 1 simply states “Jurisdicational error”.
This ground of review is broad. It makes it difficult for the Court, and the Minister, to identify what errors the applicant is alleging arose here.
The Court has reviewed the materials in the Court Book for any arguable case of jurisdictional error and notes as follows:
a)the IAA accurately summarised the applicant’s claims for protection at [6] of its decision. The Court has reviewed the materials in the Court Book and is satisfied that the IAA’s summary is accurate. The IAA actively engaged with each of those claims having referred to the applicant’s evidence, noted country information on matters specific to the applicant’s claims and after doing so made logical and intelligible conclusions;
b)the IAA acted in compliance with the procedural fairness obligations of div.3 of pt.7AA of the Act. The Court cannot identify any reason that the IAA ought to have exercised the discretion under s.473DC(3);
c)the IAA correctly summarised the principles relating to the refugee and complementary protection criterions. It is apparent from the IAA’s decision that it understood how these provisions were to be applied. Further, the IAA’s assessment of the “new information” and whether it met s.473DD demonstrates a sound understanding (and correct application) of the relevant legislative provision; and
d)the IAA’s reasons for rejecting the applicant’s evidence and claims have a logical and probative basis. The IAA relied on inconsistencies, implausibility, a lack of detail given by the applicant and the country information. These provide a sound basis for the IAA’s findings.
To the extent that the applicant’s oral submissions state that the IAA focussed on the situation “generally” and did not consider his individual circumstances, the Court does not agree. The IAA made specific factual findings based on the applicant’s own claims and evidence. The IAA’s findings as to the chance and risk of harm were based on the IAA’s assessment of the applicant’s profile as informed by his own evidence. The IAA’s subsequent reliance on country information to determine whether a person with the applicant’s individual profile was at chance or risk of harm was entirely orthodox.
To the extent that the applicant has made specific reference to whether he will face harm as a returning failed asylum seeker and an illegal departee, the IAA’s reasons at [31]-[39] comprehensively address this claim. The IAA specifically referred to matters personal to this applicant (such as the fact that he had previously attempted to depart illegally). Again, the IAA’s use of the country information when assessing the level of risk or chance to this applicant personally was orthodox. It does not, as the Minister submits, represent a “broad-brush” approach to the issues at hand.
There is no arguable case of jurisdictional error identified in ground 1.
Ground 2
Ground 2 provides:
Bias based on conscious or unconscious prejudie by ignoring revelent materials.
(without alteration)
This ground contains what can be seen to identify two “discrete” alleged errors:
a)bias; and
b)a failure to consider relevant materials
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented, that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Here, there is nothing on the face of the materials to suggest that the IAA did not act impartially. Indeed, the IAA accepted the applicant’s evidence and account of events on a number of occasions and in relation to a number of matters (see, for example [10], [12] and [21]).
Further, the Court is satisfied that there was nothing in the materials provided to the IAA that was irrelevant or prejudicial such that it could consciously or subconsciously lead to a biased assessment on the part of the IAA: as per CNY17 v Minister for Immigration & Border Protection [2019] HCA 50.
The applicant has failed to satisfy the Court that there is any arguable case that the IAA may have been biased.
As for the argument that the IAA ignored relevant materials, the applicant has not identified what those relevant materials are.
As the Court noted above, the IAA accurately identified and engaged with each of the applicant’s claims. These were the “relevant considerations” the IAA was required to take into account.
If the applicant is referring to the IAA’s conclusion that it would place no weight on the document he provided in support of his claim regarding his father’s detention (at [12]), the Court is satisfied that the IAA’s reasons for doing so were open to it. In any event, the IAA accepted that the applicant’s father was detained. Hence, any error was immaterial.
If the applicant is arguing that the IAA did not take into account the new information that was provided by his representative, it is clear from [5] of the IAA’s decision that the IAA was not satisfied that the new information met s.473DD of the Act. Having failed to satisfy the IAA that the information met s.473DD of the Act, the material was not relevant and the IAA was required to ignore it.
Ground 2 also fails to raise an arguable case that the IAA fell into jurisdictional error.
Ground 3
Ground 3 simply provides:
Identifying a wrong issue on a wrong question.
Again, the applicant has not indicated what “wrong issue” or “wrong question” has been identified by the IAA. At the hearing, when asked to clarify what he meant by this ground, the applicant stated that he did not know. He indicated that someone assisted him in filing the application.
As indicated above in relation to ground 1, the IAA correctly summarised the relevant legal principles and applied those principles appropriately and correctly.
The IAA correctly undertook its task to review the delegate’s decision. The IAA understood the legislative provisions it was to apply to the applicant’s claims and the evidence before it.
No arguable case arises here in relation to ground 3.
Conclusion as to whether there is a reasonably argue case that the IAA fell into jurisdictional error
The Court is not satisfied that the applicant’s judicial review application raises any reasonably arguable case of jurisdictional error, even on an impressionistic basis. The Court has otherwise reviewed the decision and is not satisfied that any reasonably arguable error arises.
This weighs substantially against reinstating the substantive application.
Conclusion
The applicant seeks reinstatement of his substantive application. That application was dismissed on 26 June 2020 because the applicant failed to attend the scheduled hearing.
The Court accepts that the applicant’s explanation for his non-attendance is satisfactory and reasonable. Further, the length of the delay in applying for reinstatement is minimal and there is no prejudice to the Minister if the application is reinstated. These factors weigh in favour of reinstatement
However, these factors are outweighed by the fact that, when assessing the merits of the substantive application, the Court has concluded that there is no reasonably arguable case that the IAA fell into jurisdictional error.
The Court does not consider it appropriate for the matter to be reinstated. The application in a case filed 27 July 2020 is, accordingly, dismissed.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 August 2020
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