DBE16 v Minister for Immigration
[2017] FCCA 487
•15 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 487 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects – whether the Authority denied the applicant the opportunity to respond to adverse information or denied the applicant an oral interview considered – no jurisdictional error – observations on the desirability of disclosure of new information or new issues to applicants. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) ss.5H, 36, 46A , 65, 357A, 359A, 422B, 424A, 473BA, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473FB, 473GA, 473GB, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF |
| Cases cited: AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826 AMA16 v The Minister for Immigration (2017) FCCA 303 |
| Applicant: | DBE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 506 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 March 2017 |
| Delivered at: | Sydney, via videolink to Perth |
| Delivered on: | 15 March 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 19 October 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 506 of 2016
| DBE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The particular class of visa sought by the applicant was a safe haven enterprise visa (SHEV).
Background facts relating to this matter are otherwise set out in the Minister’s outline of submissions filed on 8 March 2017.
Background
The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 2 January 2013, and was taken into immigration detention.[1]
[1] CB 3, 54 and 134-135.
The applicant attended an entry interview on 20 January 2013, and claimed that he was the defendant in a case to be tried in the Kishoreganj District Court in relation to a member of the Awami League who was killed, and that he would be killed by the Awami League if he returned to Bangladesh because they suspected he had murdered a person named K.[2]
[2] CB 1-18. The name of the alleged victim has been anonymised.
The applicant made further claims on 9 September 2013 regarding extortion by the Awami League and the vandalising of his tea shop and being beaten unconscious when he refused to pay.[3]
[3] CB 19.
In February 2014 there was an inadvertent disclosure by the Department of Immigration and Border Protection (formerly the Department of Immigration and Citizenship) (the Department) of personal information of persons, including the applicant, who were in immigration detention on 31 January 2014 (the data breach).[4]
[4] The only information that it was possible to access was a person’s name, date of birth, nationality, gender, details about the detention (when and where the person was detained and the reason), and if other family members were in detention: see the fourth paragraph of the Department’s letter to the applicant dated 12 March 2014 at CB 23.
By letter dated 12 March 2014 (the 12 March 2014 letter) the Secretary of the Department wrote to the applicant expressing deep regret for the data breach. The 12 March 2014 letter also stated that:
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.[5]
[5] CB 23.
By letter to the Minister dated 18 August 2014 a group of Bangladeshi asylum seekers, including the applicant, stated that they were victims of the data breach, and that they were political activists and could not return home as their lives would be in danger.[6]
[6] CB 25-26.
The Minister subsequently exercised the discretion in s.46A of the Migration Act 1958 (Cth) (the Migration Act) to allow the applicant to lodge an application for a protection visa, and on 5 November 2015 the Department gave a letter to the applicant which invited him to apply for either a Subclass 785 Temporary Protection visa or a Subclass 790 SHEV.[7]
[7] CB 28-39.
On 26 November 2015 the applicant lodged an application for a SHEV.[8] The application included a statement by the applicant regarding his claims.[9]
[8] CB 41-83 and 84.
[9] CB 78-80.
On 28 April 2016 the applicant attended an interview with the delegate.[10] Following the interview the delegate wrote to the applicant in relation to the information he gave at his entry interview.[11]
[10] CB 105 and 138[21].
[11] CB 116-119.
On 10 May 2016 the applicant’s migration agent sent a post hearing submission to the Department in relation to the applicant.[12]
[12] CB 122-129.
On 20 July 2016 the delegate decided not to grant the applicant a SHEV.[13]
[13] CB 131 and 134[1].
The matter was then referred to the Authority in accordance with s.473CA of the Migration Act, as the delegate was satisfied that the applicant was not an “excluded fast track review applicant”.[14]
[14] CB 161 [167] and 162-168.
On 21 July 2016 the Authority sent to the applicant an acknowledgement of referral enclosing information about the Authority and the Authority’s “Practice Direction for Applicants, Representatives and Authorised Recipients” (the Practice Direction).[15]
[15] CB 170-186.
On 8 August 2016 the applicant provided a statement and documents to the Authority.[16]
[16] CB 187-189.
On 22 September 2016 the Authority affirmed the decision not to grant the applicant a SHEV.[17]
[17] CB 199.
The applicant was notified of the Authority’s decision on 25 August 2016, and provided with a copy of the decision and a fact sheet about Authority decisions.[18]
[18] CB 195-216.
On 18 October 2016 the applicant lodged an application for judicial review of the Authority’s decision in this Court.
The Authority’s decision
The Authority noted that it had regard to the material referred by the Secretary under s.473CB of the Migration Act and the statement and documents provided by the applicant on 9 August 2016.[19]
[19] CB 200 at [2]-[3].
The Authority expressed doubts as to the applicant’s credibility based on inconsistencies in the evidence he provided to the Department at his entry and identity interviews, his written statements and submissions, and his SHEV interview.[20]
[20] CB 202-205 at [6]-[12].
The Authority:
a)was willing to accept that the applicant was a member of the Bangladesh Nationalist Party (BNP) and opposed to the Awami League (AL) and that his involvement amounted to putting up posters at election time and arranging seating and serving refreshments at meetings, but was not willing to accept that the applicant’s involvement went beyond this or that he could be described as a political leader or organiser of BNP meetings;[21]
b)accepted that the applicant’s father unsuccessfully stood as a candidate for the BNP in 1983 for the office of local union chairman and that the applicant’s brother has been president of the Sadekpur Union Jatiyatabadi Chhatra Dal;[22]
c)was willing to accept that upon return to Bangladesh, the applicant may again become involved in low level political activities such as putting up posters at election time and arranging seating and serving refreshments at meetings;[23]
d)did not accept that the applicant or his family had been the targets of acts of violence or extortion perpetrated by a gang (Mr A gang) or the AL, nor that the applicant or his family had been involved in acts of violence against the AL;[24]
e)did not accept that the applicant was ever accused of murder;[25]
f)accepted that the applicant departed Bangladesh illegally in mid-2012 and that he was smuggled to Malaysia without a passport;[26] and
g)accepted that in February 2014, a report was released on the Department’s website which enabled access to the personal details of persons who were held in immigration detention on 31 January 2014, and that the applicant was one of those persons.
[21] Tribunal decision (TD) [12]
[22] TD [12]
[23] TD [12]
[24] TD [12]
[25] TD [12]
[26] TD [13]
Based on these findings of fact and country information in relation to Bangladesh, the Authority:
a)was not satisfied that there was a real chance that the applicant would be targeted for extortion demands upon his return to Bangladesh for reasons of his being a member of the BNP, or more generally;[27]
[27] TD [17]
b)was not satisfied that there was a real chance that the applicant would be prevented from attending and assisting at BNP meetings, or putting up posters at election time in his home area in the future;[28]
[28] TD [17]
c)was not satisfied that the applicant would face a real chance of harm of any other kind for reason of his BNP membership;[29]
d)was not satisfied that there was a real chance the applicant would be harmed for reason of his being a low level BNP member who is also a family member of two local BNP leaders;[30]
e)was not satisfied that the applicant would be harmed by AL supporters or associated criminal groups, or by the Bangladesh authorities, if he returned to his home area in Bangladesh;[31]
f)accepted that the applicant would be returning to Bangladesh as a person who departed illegally and that the Bangladesh authorities would be aware of this if he returned,[32] and that the Bangladesh authorities may be able to infer, as a consequence of the 2014 data breach and possible involuntary removal, that the applicant sought asylum in Australia;[33]
g)did not accept that the applicant was wanted by the Bangladesh authorities for murder or in any other regard;[34]
h)was not satisfied that there is a real chance that the applicant would, upon return to Bangladesh, be imputed to be in conflict with the authorities in Bangladesh or that he would be harmed on this basis and/or for reason of his having departed illegally or as a consequence of, or in addition to, his having sought asylum in Australia or his details being released as part of the 2014 data breach, or because of his association with the BNP;[35]
i)was not satisfied that the applicant would be harmed by non-state actors for having travelled to a western country to seek asylum or for a reason associated with the data breach, or any other reason;[36]
j)was not satisfied that there is a real chance that the applicant would suffer beatings, intimidation, extortion threats or any other kind of perpetrated harm upon return to Bangladesh, and therefore was not satisfied that there is a real chance that the applicant would live in constant fear and anxiety if returned to Bangladesh or that he would suffer mental harm of any other kind;[37]
k)having considered the applicant’s profile as a whole, was not satisfied that there is a real chance that the applicant would suffer harm of any kind if returned to Bangladesh;[38] and
l)considered the complementary protection provisions and was not satisfied that there is a real risk that the applicant would suffer harm of any kind if he returned to Bangladesh, and was therefore not satisfied that there is a real risk that he would suffer significant harm if he returned to Bangladesh.[39]
[29] TD [18]
[30] TD [18]
[31] TD [18)
[32] TD [19]
[33] TD [19]
[34] TD [20]
[35] TD [20]
[36] TD [21]
[37] TD [23]
[38] TD [23]
[39] TD [27]
In accordance with those findings, the Authority concluded that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act and did not meet s.36(2)(a),[40] and that he did not meet s.36(2)(aa).[41]
[40] TD [24]
[41] TD [28]
Present proceedings
These proceedings began with a show cause application filed on 19 October 2016. The applicant continues to rely upon that application. The grounds in the application are:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
The grounds are in a template form with which the Court is familiar. The Minister notes that a ground of application in identical terms to Ground one was raised by another Bangladeshi SHEV applicant in DCG16 v Minister for Immigration & Anor[42] which I rejected at [31]-[33]. Ground 2 is identical to the second ground of application in DCG16 v Minister for Immigration & Anor.[43]
[42] [2017] FCCA 285
[43] at [22]
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 8 December 2016.
Both the applicant and the Minister prepared pre-hearing submissions in accordance with procedural orders made by a registrar. Regrettably, the applicant’s submissions do little more than traverse the applicant’s claims for protection. The applicant asserts a failure to consider his claims for protection, but that assertion is not sustainable by reference to the Authority reasons. The applicant also asserts that the Authority failed to consider his mental condition based on prolonged detention. He also asserts the Authority failed to consider the Department’s data breach in 2014. The latter issue was considered by the Authority.
The applicant’s medical condition is not the subject of any particular evidence. I am, however, satisfied that the Authority took into account the various claims that were made to it and the Department by the applicant. I invited oral submissions from the applicant today after explaining to him, the limits of judicial review and the procedural code under which the Authority operates. The applicant told me that he would like a further opportunity for merits review of his protection claims. He was, however, unable to advance any legal argument to support the application for remittal of the case to the Authority.
The Minister’s submissions detail the provisions of the Migration Act bearing upon the so-called fast-track review process. These have been traversed in recent decisions.
Statutory framework
The Fast Track Review Process (FTRP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTRP is to provide a limited, efficient and quick form of review of certain decisions refusing protection visas some applicants, including those who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 and before 1 January 2014.[44] Such a reviewable decision is known as “fast track reviewable decision”.[45] A protection visa applicant whose visa refusal decision is subject to the FTRP is known as a “fast track review applicant”.[46]
[44] see ss.473BA and 473FB of the Migration Act
[45] see definition in s .473BB Migration Act
[46] defined in s.5(1)
The applicant is a “fast track applicant” as defined in s.5(1), as he arrived in Australia on 2 January 2013, the Minister exercised his discretion under s.46A(2) to lift the bar in s.46A(1), and the applicant lodged a valid application for a SHEV.
Pursuant to s.5(1) of the Migration Act, a person is a “fast track review applicant” if he or she is a fast track applicant who is not an “excluded fast track review applicant”.[47] The applicant is a fast track review applicant as he is a fast track applicant who is not an excluded fast track review applicant.[48]
[47] also defined in s.5(1)
[48] The delegate found that the applicant is not an excluded fast track applicant: see delegate’s reason at CB 161 [167].
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Accordingly, the delegate’s decision on 20 July 2016 to refuse to grant a protection visa to the applicant was a fast track decision, and therefore was also a fast track reviewable decision in accordance with paragraph (a) of the definition in s .473BB.
Part 7AA of the Migration Act establishes a comprehensive scheme of review of fast track reviewable decisions.
Division 8 of Part 7AA[49] establishes the Authority, the body conducting reviews of fast track reviewable decisions.
[49] Ss.473JA-473JF of the Migration Act
Division 2 of Part 7AA[50] sets out the procedure for referring fast track reviewable decisions to the Authority. Under s.473CA, the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made.
[50] ss 473CA-473CC of the Migration Act
Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Department to give to the Authority certain material in respect of that decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the 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 Authority) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision, or remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation.
Division 3 of Part 7AA[51] deals with the manner in which reviews are to be conducted by the Authority.
[51] Migration Act ss.473DA-473DF
Subsection 473DA(1) provides that Division 3 of Part 7AA, 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 [Authority]”. This provision is couched in broader terms than ss.357A(1) and 422B(1) and has been found to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority.[52]
[52]AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826 at [12] per Judge Cameron.
Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
However, s.473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information (new information)” that “were not before the Minister when the Minister made the decision under section 65” and “the [Authority] considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in s.473DC(1) by providing that the Authority “does not have a duty to get, request or accept any new information whether the [Authority] is requested to do so by a referred applicant or by any other person, or in any other circumstances.”
Further, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the 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 s 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.
Subsection 473DE(1) imposes certain disclosure obligations on the Authority not dissimilar to those imposed on the AAT by ss.359A and 424A of the Migration Act.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by the Authority. Subsection 473FA(1) provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the Authority “is not bound by technicalities, legal forms or rules of evidence.”
Consideration
The Minister’s submissions also deal adequately with the grounds advanced in the application which, as I have already noted, are in template form. Subject to the observations which follow, I agree with the Minister’s submissions.
Ground one
The Authority rejected the applicant’s claims on the basis of the applicant’s inconsistent statements to the Department and contradictions in his evidence.
This ground is unparticularised and, for the reasons that follow, it misunderstands the statutory framework in Part 7AA of the Migration Act.
First, the applicant has identified no power of the Authority by which it could have identified “critical matters” to the applicant. To the extent that the applicant alleges that the Authority should have given to the applicant material that was before the delegate at the time the delegate made the decision, s.473DA(2) of the Migration Act makes it clear that nothing in Part 7AA requires the Authority to do so.
To the extent that the ground can be read to allege that the Authority denied procedural fairness by not inviting the applicant to give new information at an oral interview or in writing, such allegation must fail as under s.473DC(2) of the Migration Act the Authority has no duty to do so in any circumstance.
Secondly, and in any event, the applicant’s inconsistent statements were put to him at the delegate interview on 28 April 2016, and the applicant’s representative addressed the issue of the applicant’s credibility in a subsequent written submission to the delegate.[53]
[53] See the submissions dated 7 May 2016 at CB 122-129.
The protection visa assessment also sets out the delegate’s concerns with the inconsistent information provided by the applicant in his entry interview and in his SHEV application and interview.[54] As such, and in light of the above, any allegation that the applicant was not on notice of “critical matters” relevant to the Authority’s review of the delegate’s decision, and/or was not on notice that his credibility was in issue, cannot be sustained.
[54] See delegate’s reasons at CB 143-146 [54]-[69].
Thirdly, the applicant was sent an acknowledgement letter by the Authority, which attached a fact sheet advising that he could make a submission to the Authority on why he disagreed with the delegate’s decision. The fact sheet was translated into Bengali. The applicant was also sent the Practice Direction, which again contains information about making submissions to the Authority. The applicant had the opportunity to provide “new information” to the Authority and to make submissions on the delegate’s findings, which included findings about inconsistencies in the applicant’s evidence and his credibility. The applicant did make submissions to the Authority but did not provide any “new information” to the Authority. While there is nothing in Part 7AA which entitles the applicant to an interview, if the applicant had taken up this opportunity to provide further material, the Authority would have had to decide whether it was able to consider the material pursuant to s.473DD of the Migration Act.
The Authority did not consider any new information, so there was no obligation on the Authority to put the particulars of any information to the applicant for comment in accordance with s.473DE of the Migration Act. In any event, pursuant to s.473DA(2) of the Migration Act, the Authority is not obliged to give the applicant any information that was before the delegate.
The codification of the natural justice hearing rule by s.473DA(1) is apparently complete and exhaustive in relation to reviews conducted by the Authority, and there is nothing to suggest that the Authority failed to comply with its procedural fairness obligations as contained in Part 7AA.
Ground one is not made out.
Ground two
Ground two asserts that an interview is required when an applicant’s credibility is an issue. Such allegation is misconceived and, as outlined above, misunderstands the statutory framework within which the Authority is to conduct its reviews.
It is clear from the legislation inserting Part 7AA into the Migration Act that Parliament did not intend that an applicant would generally be entitled to attend an interview before the Authority, even where the Authority rejects the credibility of the applicant’s claim. This intention is derived from the general position set out in s.473DB(1) of the Migration Act that reviews are to be conducted on the papers without interviewing the applicant, and from the following aspects of ss.473DC and 473DD of the Migration Act:
a)Although ss.473DC(1) and (3) allow the Authority to obtain new information, including by way of oral interview, s.473DC(2) provides that there is no duty to do so.
b)Section 473DD restricts the circumstances in which the Authority is entitled to consider new information to those where the Authority is satisfied that there are exceptional circumstances to justify considering the new information, and where the applicant satisfies the Authority that any new information given by the applicant was not, and could not have been, provided to the Minister before the Minister made the s.65 decision, or where the new information is credible personal information which was not previously known and may have affected the consideration of the claims if it was known.
There is nothing otherwise in Part 7AA of the Migration Act to suggest that an applicant must be invited to an oral interview by the Authority.
I accepted similar submissions made by the Minister in relation to the identical ground of application in DCG16 v Minister for Immigration & Anor.[55]
[55] at [35] and [36]
It is the case that, although the delegate had concerns about the credibility of the applicant’s extortion claims, she was willing to accept those claims, while the Authority assessor did not accept this claim as he considered that if the applicant had been a target of extortion he would have said so at his entry interview: see delegate’s reasons at [61]-[64] [56]and the Authority’s reasons at [12][57].
[56] CB 145.
[57] CB 245.
Nevertheless, and in any event, there is no equivalent of s.425 of the Migration Act in Division 3 of Part 7AA or in s.473GA or s.473GB of the Migration Act. Accordingly, and subject to my additional observations set out below, it would appear that the requirements of the natural justice hearing rule identified in cases such as SZBEL v Minister for Immigration[58] do not apply.[59]
[58] (2006) 228 CLR 152
[59] see AMA16 v Minister for Immigration & Ors [2017] FCCA 303 at [21]
Ground two is not made out.
The Minister’s submissions referred to a very recent decision of this Court in AMA16 v The Minister for Immigration, in particular, at [20] and [21]. The observations of Judge Riley in that case are consistent with the Authority’s legislative scheme and should be followed on the basis of judicial comity unless clearly wrong.
Her Honour’s views are not clearly wrong. Indeed, subject to two qualifications, I agree with them. The first is that the Authority is not prohibited by its procedural code from augmenting its statutory procedures where necessary in order to alert applicants to new issues arising before the Authority of which applicants were not previously aware. Good administration mandates the disclosure of new issues arising in the course of the Authority’s consideration and an abundance of caution in making such disclosures does not constitute a jurisdictional error.
The second qualification is that the courts have proceeded on the assumption that s.473DA(1) of the Migration Act is a valid enactment of the Commonwealth. This is not the appropriate case to discuss that issue further. The issue might, however, be raised in an appropriate case if practical injustice resulted from a failure to disclose new issues and the courts were prevented from exploring the legal consequence of the failure to disclose on the basis of s.473DA(1).
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the authority is affected by any jurisdictional error. I will order that the application filed on 19 October 2015 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.
I will order that The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 March 2017
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