DDT17 v Minister for Immigration
[2020] FCCA 1511
•9 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDT17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1511 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – numerous errors alleged – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 7AA, 36, 424A, 473DA, 473DD, 473GB |
| Cases cited: AYF16 v Minister for Immigration [2018] FCAFC 129 |
| Applicant: | DDT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2213 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2020 |
REPRESENTATION
| The applicant appearing in person by telephone |
| Solicitors for the Respondent: | Ms S. Sangha of Mills Oakley by telephone |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 14 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2213 of 2017
| DDT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 19 June 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims and the decision of the Authority on them are set out in the Minister’s outline of submissions.
Background and the applicant’s claims
The applicant is a male citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 2 January 2013.[1]
[1] Court Book (CB) 40, 114
On 24 January 2013, the applicant participated in an entry interview[2] where he stated that the only reason he left Bangladesh was poverty. He also claimed that his brother was involved with the Awami League (AL), but that he was not.[3]
[2] CB 1-15
[3] CB 10
On 8 May 2013, the applicant provided additional claims for protection to a Departmental officer at Wickham Point Immigration Detention Centre.[4] The applicant claimed that he and his family were members of the AL political party and that members of the Bangladesh Nationalist Party (BNP) told them not to be AL members and had threatened and physically attacked the applicant and forced him to pay a bribe. After the attack, the applicant told the AL that he had to leave but they told him he would be beaten if he did, so he remained a member. BNP members attacked an AL party meeting and the applicant was beaten again and hospitalised and another member was killed. After his release from hospital, the applicant was attacked again but escaped and fled to Malaysia. Whilst he was in Malaysia, the BNP threatened the applicant’s brother and wrongly accused the applicant of murder.
[4] CB 16-17
On 9 August 2016, the applicant lodged his application for a SHEV,[5] which was prepared with the assistance of a registered migration agent.[6] He set out his protection claims in an accompanying written statement dated 6 August 2016,[7] in which he claimed that:
[5] CB 19-59
[6] CB 28, 65-67
[7] CB 60-64
a)he was not told that information given at his entry interview would be used for assessing his protection claims and discrepancies existed between his entry interview and his visa application;[8]
b)he was a citizen of Bangladesh and a Sunni Muslim;[9]
c)he feared returning to Bangladesh because he had been involved with the Bangladesh Awami Jubo League (AJL) since 2009 and was appointed general secretary of the AJL in 2010;[10]
d)in March 2011, he was stopped by five BNP members who told him to leave “the party” within 10 days or he would be killed. One of them slapped his face. A few days later he was kidnapped “by them”, tied up and beaten unconscious. They ordered him to leave the AJL and join the BNP. He was released after his parents paid a ransom of 4 Lakhs. He was treated at a medical clinic for two days and could not go to the police as the kidnappers told him they would murder his family;[11]
e)a week after being discharged from the clinic, the applicant went to the AJL and told them he was resigning because of what had happened but they told him that he knew their secrets and that they would kill him if he left;[12]
f)a few days later, the applicant attended an AJL general meeting that was attacked by BNP members armed with a petrol bomb, knives and hockey sticks. The applicant was injured but escaped and hid in the jungle and then went to stay with a friend. His friend was killed. The attackers looked for the applicant at his home;[13]
g)after twenty days, the applicant went home to visit his sick mother, but “they” discovered he had returned, came to his house and were banging to get in. The applicant escaped out the back and hid in the jungle during the day and, when it was very late, returned to his friend’s house on an island 45kms away;[14]
h)a month later, the applicant went to his family and a friend’s shop in the market to borrow money for his travel. His friend’s shop was attacked by burglars who stabbed and killed his friend. The applicant was wanted for investigation as a suspect concerning the killing. The burglars also sent a warning letter to the applicant’s family saying they knew his details and were watching out for him;[15]
i)the applicant feared the police would reveal his location to the BNP. He left Bangladesh with the help of a smuggler and went to Malaysia. After he had departed, BNP members visited his home on several occasions and were violent and aggressive. His brother was also kidnapped and is still missing;[16] and
j)He feared if he returned to Bangladesh he would be killed by the BNP.[17]
[8] CB 60, [2]
[9] CB 60, [4]
[10] CB 60, [7]-[8]
[11] CB 61, [9]-[13]
[12] CB 61, [12], [14]
[13] CB 61, [15]-[17]
[14] CB 62, [18]-[20]
[15] CB 62, [21]-[24]
[16] CB 62, [25]-[29]
[17] CB 63
The applicant provided copies of some identity cards[18] and his birth certificate,[19] but supplied no other supporting documents.
[18] CB 71-72
[19] CB 86
On 6 January 2017, the applicant attended an interview with the delegate (SHEV interview).[20] At the SHEV interview, the applicant raised additional claims that his brother had been kidnapped and was missing, and that his uncle was killed as a result of being injected with “unknown substances”.[21] The applicant also stated that he had never voted in an election in Bangladesh.[22]
[20] CB 105.5
[21] CB 120.7
[22] CB 116.4
On 15 January 2017, the applicant’s representative sent an email to the Department addressing concerns raised at the SHEV interview regarding inconsistent evidence given by the applicant.[23]
[23] CB 108
In a decision dated 16 January 2017, the delegate refused the application for a SHEV.[24] On the basis of significant credibility concerns, the delegate rejected all of the applicant’s claims.[25] The delegate accepted that the applicant would be a failed asylum seeker if he returned to Bangladesh but found, on the basis of independent country information, that he would not face harm on that basis.[26]
[24] CB 114-125
[25] CB 116-120
[26] CB 121-122
A certificate dated 16 January 2017 and made pursuant to s.473GB of the Migration Act 1958 (Cth) (Migration Act) (the s.473GB certificate) was issued to the Authority in relation to an “Identity Interview Recording” and an “Identity Interview Report”.[27]
[27] CB 126
The Authority’s proceedings and decision
On 19 January 2017, the matter was referred to the Authority.[28]
[28] CB 127-128
On 6 February 2017, the applicant sent the Authority an email that attached a two page submission signed by the applicant.[29]
[29] CB 141-143
On 19 June 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.[30]
[30] CB 148-163
The Authority found that to the extent that the applicant’s submission dated 6 February 2017 comprised argument with the delegate’s decision, it was not new information and was considered.[31]
[31] CB 149, [3]
The Authority found the submission also contained new information responding to concerns raised in the delegate’s interview that the Authority had squarely raised with the applicant at the SHEV interview and which the Authority accepted would not have been self-evident to the applicant. It was therefore satisfied that the applicant could not have provided this information before the date of the delegate’s decision and that there were exceptional reasons to justify its consideration.[32]
[32] CB 149, [3]
The submission also raised a new claim that the family of the applicant’s friend who was killed by burglars had reported a case and First Information Report (FIR) against the applicant, and that was the reason he fled Bangladesh. The Authority found the applicant had provided no reasons why this information could not have been provided prior to the delegate’s decision. Nor was there information before the Authority to substantiate a claim that the applicant could not have provided this claim before the delegate’s decision. The Authority found that if the friend’s family had lodged a FIR, then the applicant would have said so as part of the SHEV application. The Authority found this new information was not credible personal information and was not satisfied that the requirements of s.473DD(b) of the Migration Act were met.[33]
[33] CB 149-150, [4]
The Authority found the applicant’s identity was not in dispute and that he was a national of Bangladesh.[34]
[34] CB 150-151, [8]
The Authority summarised the applicant’s claims[35] and identified that there were discrepancies, especially about the timing of claimed events, between the evidence given in the applicant’s written statement and that given at the SHEV interview.[36] For example, in his statement the applicant indicated that the initial attack against him, his kidnapping a few days later and the attack at the AJL meeting all occurred in March 2011, but at the SHEV interview he said that the AJL meeting attack may have been in August or September 2011 and the kidnapping may have been 10 to 15 days after the attack.[37]
[35] CB 151, [9]-[10]
[36] CB 151-152, [11]-[12]
[37] see: CB 152, [12]
The Authority also found that the applicant’s account of the events following his claimed kidnapping was implausible;[38] the applicant’s claim to have been threatened by his own party was not convincing[39] and independent country information about identity checks at polling stations cast “serious doubt” on the applicant’s explanation during the SHEV interview that he never voted in an election because his vote was cast on his behalf.[40]
[38] CB 152, [13]
[39] CB 152-153, [14]
[40] CB 153, [15]
The Authority disagreed with the delegate’s finding that some of the applicant’s evidence about membership of the AJL was incompatible with country information. However, although the Authority found the applicant’s claims were “not entirely inconsistent” with the AJL’s constitution, it found this evidence did not overcome its “serious doubts” in relation to the applicant’s other evidence.[41]
[41] CB 153-154, [16]-[17]
The Authority[42] found the following evidence in the applicant’s entry interview was significant:
a)he stated that his only reason for coming to Australia was poverty in Bangladesh;
b)he stated there was no other reason that he left Bangladesh;
c)when asked about his political involvement, he stated that he had none, but that his brother was an AL member; and
d)when asked about his fears if he returned to Bangladesh, he said he would have to work as a labourer and could die of starvation.
[42] CB 154, [18]
The Authority considered the information given orally by the applicant to an officer of the Minister’s Department on 8 May 2013.[43] It also considered the post-interview submission provided by the applicant’s representative’s to the delegate dated 15 January 2017 which asserted the applicant was “not in his full mind” and “under duress and very fearful” at the time of his entry interview.[44]
[43] CB 154-155, [19]
[44] CB 155, [20]
The Authority noted the applicant’s entry interview had been conducted three weeks after his arrival in Australia and that he gave no indication that he was unfit to be interviewed at the time. The Authority found the evidence he gave at that time concerning his family composition and personal history was correct and remained consistent. On that basis, the Authority rejected the applicant’s assertion that he was unfit at the time of the entry interview.[45]
[45] CB 155, [21]
On the basis of the applicant’s evidence at the entry interview and the “unconvincing nature” of his subsequent evidence, the Authority found that the applicant was never a member or supporter of the AJL and would have no interest in supporting the AJL or the AL in future. The Authority found the applicant was never attacked, kidnapped, or threatened by BNP members or affiliates. The Authority found that the applicant’s family had not been threatened as claimed. It found the claims he raised at the SHEV interview that his brother was missing following a kidnapping and his uncle had died following an injection, were not credible. The Authority found further that the applicant’s account of his friend’s murder by burglars was not credible. The Authority found the applicant would not face harm in Bangladesh from the BNP, any Bangladeshi authorities or the burglars.[46]
[46] CB 156, [22]
The Authority accepted that the applicant’s brother was a member of the AL but, on the basis of independent country information, found that family members of such persons were not at risk of harm on that basis. Accordingly, the Authority found that the applicant would not face harm on the basis of his brother’s activities with the AL.[47]
[47] CB 156, [23]
The Authority found the applicant’s claim in his entry interview to fear poverty and starvation was not made as part of his SHEV application and was “an exaggeration given the extent to which the applicant had previously held employment in Bangladesh”. Accordingly, the Authority found the applicant would not face harm in the form of poverty or starvation upon return to Bangladesh, or that he would face circumstances that would otherwise threaten his capacity to subsist.[48]
[48] CB 156-166, [24]
While acknowledging it was not entirely clear how the applicant departed Bangladesh, the Authority found on the basis of independent country information that, even if he departed illegally, he would not face harm on that basis or on the basis of being a failed asylum seeker.[49]
[49] CB 157, [25]
The Authority found the applicant did not face a real chance of serious harm in Bangladesh, and accordingly did not meet the requirements of s.36(2)(a) of the Migration Act.[50]
[50] CB 157, [26]-[27]
In its complementary protection assessment, the Authority relied on its earlier findings to find that the applicant did not face a real risk of significant harm in Bangladesh, and accordingly did not meet the requirements of s 36(2)(aa) of the Migration Act.[51]
[51] CB 158, [30]-[31]
These proceedings began with a show cause application filed on 14 July 2017. There are six grounds and particulars in that application. The application was accompanied by a short affidavit raising general concerns. The applicant continues to rely upon his application and affidavit, which I received as a submission. The applicant filed a second affidavit on 22 February 2019. In that, the applicant raised additional allegations about the authority decision. He also relies upon that affidavit which I treated as a submission.
The applicant filed an outline of legal submissions on 22 February 2019. There is a disconnection between the grounds addressed in those submissions and the application for review. The Minister objected to the granting of leave for the additional grounds, principally on the basis of a lack of merit. I granted the leave necessary, taking into account that the applicant is a litigant in person who should be given the opportunity to express himself in relation to his concerns about the authority decision.
The Minister filed a Court Book on 5 September 2017 which I received as evidence.
The matter was listed before Judge Barnes for a callover on 12 March 2019. Her Honour transferred the matter to my docket for the purposes of a final hearing today. The matter has been before the court for three years. The applicant has known of today’s hearing date for over 12 months. He was, however, unable to say anything about the written grounds in his application or subsequent submissions. He is concerned that he was not believed by the Authority. He stated that if he had no problem in Bangladesh he would not have come to Australia. The applicant stated that he is very scared and his life is at risk. He also stated that no one could give him a guarantee of safety in Bangladesh. He specifically declined to make any comment on any of his written grounds advanced. He said he would accept whatever decision was made.
I have proceeded on the basis that the applicant is, as asserted, a fast track review applicant. He arrived in Australia on 2 January 2013 and apparently acquired on arrival the status of an unauthorised maritime arrival. He would, therefore, have been unable to make any application for protection until the Minister lifted the bar. I understand that the bar was lifted on 29 August 2016. I therefore proceed on the basis that the Authority was properly seized with jurisdiction to deal with the matter.
The Minister’s submissions deal with the numerous grounds of review in the application and subsequent submissions. In my view, those grounds, as developed over time, lack substance. I agree with the Minister’s submissions.
The application for judicial review
As noted above, on 14 July 2017, the applicant filed an application seeking judicial review of the Authority’s decision (originating application) containing six grounds with a combined set of particulars. The originating application was supported by a brief affidavit affirmed by the applicant on 12 July 2017 that confirmed that the facts in the application were true and annexed a copy of the Authority’s decision.
On 22 February 2019, the applicant filed a further affidavit (2019 affidavit) and a document titled, “Outline of applicant’s submissions” (applicant’s submissions). Both documents are dated 21 February 2019.
The 2019 affidavit makes bare assertions that the Authority lacked jurisdiction and denied the applicant procedural fairness. Without further details to make these allegations meaningful, they fail to identify any arguable case of jurisdictional error.
In the applicant’s submissions under the heading “Grounds of Application” there are eight new grounds of judicial review, but the applicant has not abandoned the six grounds of his originating application.
The six grounds of the applicant’s originating application and the eight grounds set out in the applicant’s submissions are addressed separately below.
The originating application
Ground 1
The allegation that the Authority acted without or in excess of jurisdiction by failing to take into account relevant considerations is not explained or supported by particulars. The applicant does not even identify what relevant considerations were not taken into account. A failure to particularise a ground of review is a sufficient basis for it to be dismissed.[52] Without any particulars, this allegation is meaningless and fails to identify even an arguable case of jurisdictional error on the part of the Authority.
[52] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
Ground 2
The allegation that the Authority failed to assess harm based on the applicant’s claims is also unsupported by any meaningful particulars or evidence. The Authority accurately set out and considered the applicant’s claims and gave cogent reasons for rejecting them. This ground is baseless.
Ground 3
The applicant states the Authority “failed to assess the present situation in Bangladesh” since the applicant left, but this complaint is also not explained and fails to identify any arguable case of jurisdictional error. The Authority rejected the applicant’s political claims on the basis of comprehensive adverse credibility findings. The totality of the Authority’s accepted profile of the applicant was that he would be a failed asylum seeker and may have departed Bangladesh unlawfully. However, the Authority relied on relevant country information to find that the applicant would not face harm on those bases.[53] Its findings were open on the materials before it for the reasons it gave and it has not meaningfully been suggested otherwise.
[53] CB 157, [25]
Ground 4
The applicant appears to allege that the Authority’s decision was affected by a denial of natural justice, but again contains no particulars to identify how the applicant was denied natural justice. In any event, common law procedural fairness is excluded from fast-track reviews by s.473DA of the Migration Act,[54] and no breach of any relevant provisions within Part 7AA of the Migration Act is either identified or apparent. Ground 4 has no proper basis.
[54] See EUW17 v Minister for Immigration (2019) 165 ALD 287; [2019] FCA 744
Ground 5
The applicant complains the Authority made its decision “without any verification” of his “genuine documentary evidences and statement”. The applicant does not even identify the “documentary evidences” that the Authority was required to verify. As he provided no corroborative documents to the delegate or the Authority, it is unclear how this complaint has any relevant application. Further, if the applicant seeks to allege that the Authority had an obligation to verify or inquire about his evidence, then he misconceives the nature and scope of the Authority’s review power in Part 7AA of the Migration Act. This ground has no basis.
Ground 6
It is alleged that the Authority’s “decision is identical or similar of (sic) the Departmental decision”. There is no basis to contend that the Authority did not bring an impartial mind to its task and simply adopted the delegate’s decision. Indeed, it expressly did not agree with aspects of the delegate’s decision.[55] The Authority’s findings and reasons were open to it on the material before it and for the reasons it gave. No error is revealed by the fact that both the delegate and the Authority held significant credibility concerns regarding the applicant’s evidence. At its highest, ground 6 invites the Court to engage in impermissible merits review of the Authority’s decision.[56]
[55] CB 153, [16]
[56] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Combined particulars
Following the applicant’s six grounds in his originating application are a further eight paragraphs under the heading, “Particulars”. The particulars are in the form of submissions but also make bare assertions that the Authority acted unreasonably, misunderstood the evidence before it and denied the applicant procedural fairness. Without further details to make these allegations meaningful, they fail to identify any arguable case of jurisdictional error.
The applicant’s submissions
Ground 1 alleges the applicant was denied procedural fairness and natural justice by the Authority. My observations above in relation to the same complaint in ground 4 of the originating application are relevant here.
Ground 2 cites aspects of the reasoning from DBD16 v Minister for Immigration[57] and DBC16 v Minister for Immigration[58] concerning the issue of whether persons who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands are unauthorised maritime arrivals for the purpose of s.5AA of the Migration Act. It then asserts that the present Authority did not have jurisdiction in relation to the applicant. This ground is baseless. There is no evidence to support a contention that the applicant was not an unauthorised maritime arrival. Indeed, the applicant’s evidence in his SHEV application states that he arrived in Australia at Christmas Island on 2 January 2013.[59] Accordingly, DBD16 and DBC16 have no relevant application to the applicant’s actual circumstances.
[57] DBD16 v Minister for Immigration [2018] FCCA 1801 (DBD16)
[58] DBC16 v Minister for Immigration [2018] FCCA 1802 (11 July 2018) (DBC16) per Judge Smith
[59] see: CB 40, Q47 and Q48
Ground 3 alleges that the Authority erred by failing to put to him in writing the identified inconsistencies in his evidence. Again, this complaint misconceives the Authority’s review function. A Part 7AA of the Migration Act fast-track review requires the Authority to proceed on the papers, without accepting or requesting new information or interviewing the applicant.[60] The Authority was not required to notify the applicant of specific reservations it had about his case,[61] and it may only refer to new information in exceptional circumstances.[62] Also, it is only new information that the Authority may be required to give to an applicant in specified circumstances[63] that do not presently arise. This bare complaint cannot succeed.
[60] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; (2018) 92 ALJR 481 at [22]; Migration Act s.473DB(1)
[61] See DGZ16 v Minister for Immigration (2018) 258 FCR 551 at [72] and [75]
[62] Migration Act s.473DD
[63] Migration Act s.473DE
Ground 4 appears to complain that the Authority failed to put information to the applicant for comment pursuant to s.424A of the Migration Act. Again, this complaint is misplaced. The Authority’s review was conducted under Part 7AA of the Migration Act and Part 7 of the Migration Act, which includes s.424A of the Migration Act, had no relevant application to the Authority’s fast-track review.
Ground 5 alleges that the Authority’s credibility findings were made without evidence or were legally unreasonable. This is a bland assertion of error. The Authority’s findings concerning the applicant’s credibility were plainly open to it and it gave cogent reasons for its findings.
Ground 6 repeats the complaints in grounds 3 and 4 that the Authority failed to invite the applicant to comment on adverse information. For the reasons given above, the Authority was not required to invite the applicant to comment on any information.
Ground 7 alleges that the Authority erred in relation to a consideration of “internal relocation”. The Authority found the applicant would not face harm in Bangladesh for any reason. Accordingly, no consideration of internal relocation was required.
Ground 8 is unintelligible and advances no case of jurisdictional error.
Further allegations. The applicant’s submissions (at page 2) allege that the Authority failed to make an assessment in relation to complementary protection. The Authority plainly made such an assessment.[64] Although its complementary protection assessment was brief, that was due to circumstances where in its refugee assessment the Authority had largely rejected the applicant’s factual claims. The Authority[65] also correctly appreciated that the “real risk” standard for its complementary protection assessment was the same as the “real chance” standard.[66] No error is revealed by the Authority’s approach.
[64] CB 157-158, [28]-[31]
[65] CB 158, [30]
[66] Minister for Immigration v SZQRB (2013) 210 FCR 505
The applicant’s submissions (at page 7) also allege that the Authority’s decision was affected by actual or apprehended bias. No evidence is provided in support of this allegation, which is a serious allegation that must be firmly and distinctly made and clearly proven.[67]
[67] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
Conclusion
The applicant’s originating application, affidavits and submissions fail to establish any jurisdictional error on the part of the Authority.
Further, no jurisdictional error is either identified or apparent by the Authority’s conduct in not expressly notifying the applicant of the non-disclosure certificate dated 16 January 2017 and issued pursuant to s.473GB of the Migration Act.[68] No procedural fairness obligations on the part of the Authority were enlivened, given the operation of Part 7AA and s.473DA of the Migration Act.[69] The fact that the Authority did not refer to the certificate in its decision does not provide a basis for an inference that the exercise of the discretion conferred by s.473GB(3)(b) of the Migration Act was not considered. The Authority, in arriving at its decision, is not required to give reasons for the exercise or non-exercise of a procedural power such as that conferred on it by s.473GB(3) of the Migration Act.[70]
[68] CB 126
[69] BVD17 v Minister for Immigration [2018] FCAFC 114; Minister for Immigration v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [90]-[101]; AYF16 v Minister for Immigration [2018] FCAFC 129 at [37]
[70] BVD17 v Minister for Immigration [2019] HCA 34 at [16]
Further, as the documents the subject of the s.473GB certificate related to the applicant’s identity which was not in dispute, it is not apparent how the non-disclosure of the existence of the certificate or the material it covered, deprived the applicant of a successful outcome or that this non-disclosure was material to the outcome of the decision.[71] There is nothing to indicate that the Authority took into account in its decision any of the material covered by the certificate.
[71] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 at [45]
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. That is well below scale costs. 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, fixed in the sum of $5,000.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 June 2020
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