DHB17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 714
Federal Circuit and Family Court of Australia
(DIVISION 2)
DHB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 714
File number(s): SYG 2310 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 31 August 2022 Catchwords: MIGRATION LAW – Application for judicial review – adequate reasons – illogicality and unreasonableness – error in reasons of the Authority – materiality – applicant not deprived of a successful outcome – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 473CB, 473DC, 473DD. Cases cited: ALR17 v Minister for Home Affairs [2019] FCAFC 182
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Hossain v Minister for Immigration and Boarder Protection [2018] HCA 34
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nathanson v Minister for Home Affairs [2022] HCA 26Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 4 August 2022 Place: Parramatta Counsel for the Applicant: Mr Shipp of Counsel Solicitor for the Applicant: Australian Presence Legal Appearing for the First Respondent: Mr Taylor Solicitor for the First Respondent: Mills Oakley
Table of Corrections 4 October 2022 At paragraph [52], delete paragraph number [11] and insert paragraph number [16].
At paragraph [49], delete paragraph number [11] and insert paragraph number [16].ORDERS
SYG 2310 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
31 August 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Further Amended Application for judicial review filed 4 August 2022 is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
February 2016
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
This is an application for judicial review of a decision of the Immigration Assessment Authority (“IAA”), made on 23 June 2017, which affirmed the decision of the delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
Background
The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia as an unauthorised maritime arrival on 10 September 2012.
On 29 February 2016, the applicant applied for a SHEV on the basis that he feared harm from Sri Lankan authorities arising from an imputed affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”).
In support of his application, the applicant raised the following:[1]
(a)On 15 December 2010 (“the 2010 incident”), the applicant and his father were detained by the Sri Lankan Navy (“SLN”) for three days at an army camp. The applicant’s father was “severely” beaten, and the applicant was threatened (although not physically harmed) and interrogated as to whether he was specifically involved in the LTTE and whether he was aware of others who were.
(b)Upon their release, the SLN withheld their national identity cards and fishing passes.
(c)Approximately two months later, the applicant was taken from his residence to a navy camp. He was again interrogated and this time physically assaulted by the SLN.
(d)Until the applicant fled Sri Lanka in September 2012, the SLN and the Criminal Investigation Department (“CID”) would attend at the applicant’s home and question him about whether he had any dealings with the LTTE and/or knew any former LTTE cadres in the area.
(e)Navy officers would also attend at the applicant’s place of employment (grocery store) to question him, and would take goods without purchase causing problems for the applicant with his employer.
(f)In November 2011 (“the 2011 incident”), the applicant was rounded up alongside other young males after an LTTE flag was raised in celebration of LTTE Martyr’s Day. The applicant was interrogated for over 7 hours.
[1] CB: [38] – [41]
The applicant participated in an interview with a delegate of the Minister on 13 July 2016.
On 15 December 2019, the applicant’s SHEV application was refused by the delegate. In determining the application, the delegate largely accepted the applicant’s narrative in respect of both the 2010 and 2011 incidents, however found that the chance of harm that the applicant would suffer by reason of being a Tamil, of itself, was remote. The delegate also found, amongst others, that the applicant did not hold a well-founded fear of persecution by reason of an imputed connection to the LTTE (or as a failed asylum seeker) as the applicant did not have a political profile of any kind, and that the Department had assessed that the monitoring and harassment of Tamils in the area had decreased under the Sirisena government and those at highest risk of arrest, detention or prosecution were the LTTE’s former leadership.
On 21 December 2016, the delegate’s decision was referred to the IAA for fast track review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
IAA’s Decision
On 23 June 2017, the IAA determined the applicant’s case. It affirmed the decision of the delegate not to grant a protection visa. The IAA had regard to the review material provided by the Secretary pursuant to s.473CB of the Act and the applicant’s submission dated 2 February 2017 (“IAA submission”) (only to the extent that it contained arguments responding to the delegate’s decision and reasserted claims that were before the delegate; but otherwise ultimately did not accept as new information under s.473DD).
In summary, the IAA submission addressed/raised the following:
(a)That the delegate relied on old/outdated reports and information which the applicant said is contradicted by the latest report from Sri Lanka by the Committee Against Torture dated November 2016 (“CAT report”). The report or rather excerpts provided related to various matters including the treatment of criminal links and those suspected of LTTE links.
(b)A TamilNet article published in January 2017 which alleged that the Terrorist Investigation Division conducted abduction style arrest of two former LTTE members who had been previously released from rehabilitation.
(c)That SLN and CID officers had recently attended his home in Sri Lanka and questioned his family about his whereabouts, and that his family were told that they had “vital information” about his illegal departure and that neighbours had been asked to inform on him.
The IAA was not satisfied that most aspects of the IAA submission was new information, and if it were new information: specifically the CAT report and the TamilNet article, did not meet the requirements of s.473DD. The IAA, however, found that the requirements of s.473DD were met in relation to a new claim, that is, that Sri Lankan authorities had continued to visit the applicant’s family home. The IAA relied on DFAT country information (pursuant to s.473DC(1)) and was satisfied that exceptional circumstances existed to justify considering that new information.
Although the IAA accepted the majority of the applicant’s narrative (as did the delegate) and found that the applicant had been “generally consistent”, the IAA was of the view that the applicant’s evidence provided during the SHEV interview contained “internal inconsistencies” and that none of the applicant’s family members had ever been arrested, and as such the IAA found that the applicant sought to embellish the level of support and involvement his family had with the LTTE.
In addition (and in summary), the IAA made the following findings:
(a)That while the applicant had been detained three times and assaulted, these incidents did not amount to torture;
(b)That the applicant did not have a high level of involvement with the LTTE, and that any such questioning the applicant was subjected to by the authorities was focussed on whether the applicant had any knowledge about other LTTE supporters in the local area and not in respect of any perceived association with the LTTE (despite being asked about his own involvement[2]);
(c)That the applicant’s mother’s family provided “some low-level LTTE support”, however this did not cause the family to be known as LTTE supporters;
(d)That the November 2011 incident was not targeted at him personally, but rather as a result of the applicant being in proximity to the events that occurred;
(e)That the subsequent visits to the applicant’s home by authorities (the new claim) occurred in the context of routine monitoring and because the authorities were aware the applicant was no longer residing in the home;
(f)That although the applicant would be identifiable as a failed asylum seeker and would be subjected to police investigations regarding his identity upon return to Sri Lanka, the Sri Lankan authorities would be satisfied that the applicant had no LTTE links, no outstanding criminal matters and that he did not have an adverse profile; and
(g)That the applicant did not face a real chance of significant harm whether as a failed returnee asylum seeker or by reason of his claims or otherwise.
[2] At [14] of the IAA’s decision.
determination
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the IAA to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
In order to succeed, the applicant must establish that the IAA’s decision is affected by jurisdictional error.
Application before the Court
At the commencement of the hearing, the applicant was granted leave to file a Further Amended Application. Accordingly, the applicant moves on the following ground:
The IAA made a jurisdictional error in that it:
(a) failed to give adequate reasons particularising any alleged internal inconsistencies in the Applicant’s account.
(b) failed to have regard to all of the evidence, particularly that contained in the PV interview, in respect to:
(i) The implications of the injury to the Applicant’s father at the hands of the authorities,
(ii)The implications of the retention of the Applicant’s ID card by the authorities,
(iii)The evidence that the authorities were aware of the Applicant’s family’s association with the LTTE.
(iv)The Applicant's detention for 3 days, about which the IAA made contradictory and illogical findings.
Ground 1
Ground 1 is couched in terms of a failure to give adequate reasons.
The applicant asserts that the IAA’s findings at [11] and [12] of the IAA’s reasons are unsustainable, as they are premised on “internal inconsistencies” which are not articulated. As such and because this was a critical finding by the IAA, the IAA made a jurisdictional error.
When read properly and carefully, it is clear that the IAA’s reasons do in fact make reference to matters which the IAA found were internally inconsistent. To be precise the IAA’s reasons state as follows:
[11] With a couple of exceptions (discussed below), the applicant has been generally consistent in his description of the claimed incidents and at the SHEV interview he appeared to be recalling his own personal experiences…
The inconsistencies are then identified.
First, the IAA finds that:
[12] During the SHEV interview the applicant stated the authorities had kept questioning him on an ongoing basis because they knew his family, in particular his uncle and father, had supported the LTTE by supplying food and going around with them and that in 2006-07, LTTE officers stationed in [suburb A] would sometimes come to have a meal at his house…
Next, the IAA finds that:
[12] … However, earlier in the interview when the delegate directly questioned him about his family’s association with the LTTE, he stated that during the ceasefire when LTTE members were present in [suburb B] his mother’s family had supported the LTTE by supplying food.
(emphasis added)
The transcript of the SHEV interview[3] reveals that firstly, the applicant said that it was his mother’s brother who lived with them who supplied food to the LTTE whilst the LTTE were in suburb B. The mother’s family was said to have helped. Nextly, the applicant said that when there was an LTTE presence in suburb A, his uncle, his father and some other relatives would support the LTTE by supplying them with food, by going around with the LTTE and also by having members of the LTTE come to the applicant’s home to have a meal in 2006-07.
[3] Affidavit of Shamali Kugathas filed 31 May 2022: annexure “A” at T:21
It is evident from the reasons of the IAA[4] what the inconsistencies are said to be.
[4] CB: 97-98 at [12]
The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[5]
[5] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]
Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision.[6]
[6] Minister for Immigration and Citizenship v Li [2013] HCA 18
It was open to the IAA to describe those matters it identified (and which are referred to at [20] and [21] above) as being internally inconsistent, particularly when the applicant’s first claim of involvement with the LTTE was made in answer to a question of whether anyone in his family was ever involved in the LTTE and whether he had any family members who supported the LTTE at all.[7]
[7] Emphasis added.
While it may be arguable that the two claims made by the applicant at the SHEV interview were not inconsistent, for example the mother’s brother is an uncle of the applicant, and the mother’s family are relatives, the claims relate to two different time frames and to two different places, and that one was a continuation of the other; this is not necessarily so.
The IAA’s reasons disclose a logical chain of reasoning between what the applicant said during the SHEV interview and the conclusions drawn by the IAA about there being inconsistencies. It cannot be said that no reasonable decision maker could have come to the conclusion reached by the IAA.
The IAA had no obligation to put to an applicant what it believed might be inconsistencies, for the applicant to be able to answer or clarify.[8] Furthermore, the IAA is not required to refer to every piece of evidence and every contention made by the applicant in its written reasons.[9]
[8] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; at [72]; ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [30]. Furthermore, there is nothing in Part 7AA of the Act, which suggests that the IAA is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant to the same issue.
[9] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]
The IAA then went on to[10] refer to country information regarding the treatment of LTTE members and those suspected of assisting the LTTE by the Sri Lankan authorities and to consider this with the applicant’s evidence, that apart from the applicant’s father being detained with the applicant in 2010, none of the applicant’s family members were ever arrested, taken for interrogation or rehabilitation or otherwise detained.
[10]CB: 97-98 at [12]
It was on the basis of this contrasting treatment of the applicant and his family to the way LTTE members/supporters were treated and the internal inconsistencies that were identified by the IAA, that the IAA found that the applicant attempted to embellish the level of support by his family to the LTTE and contact with the LTTE; and not as submitted by the applicant that the IAA considered the applicant embellished on the basis of the internal inconsistencies only.[11]
[11] See applicant’s submissions filed 20 July 2022 at [26].
Ground 1 is not made out.
Ground 2
Ground 2 is couched in terms of a failure to have regard to all evidence, with four particulars being provided, namely:
(a)The implications of the injury to the Applicant’s father at the hands of the authorities;
(b)The implications of the retention of the Applicant’s ID card by the authorities;
(c)The evidence that the authorities were aware of the Applicant’s family’s association with the LTTE; and
(d)The Applicant's detention for 3 days, about which the IAA made contradictory and illogical findings.
While formally pressed and the subject of submissions, the first three particulars did not feature strongly in the applicant’s arguments. It was the fourth particular that occupied a much more significant period of time during the judicial review hearing.
Particulars (a), (b) and (c)
The applicant concedes that the IAA was aware of these issues, and that they were taken into account in determining certain aspects of the applicant’s claim. However, the applicant contends that merely saying something happened is not sufficient consideration, and the IAA was obliged to consider why these things happened.
Firstly, the IAA accepted that the applicant’s father was beaten. It is correct to say that there was no further findings as to why the applicant’s father was beaten in the considering of the applicant’s profile. However, the beating took place in the context of the applicant being detained and questioned about the LTTE. The IAA did consider the questioning of the applicant at the time, and found that the enquiries were focused on intelligence gathering from the applicant’s knowledge of others.
Secondly, the IAA accepted that the applicant was stripped of his national identity card after he was detained and questioned, on the same occasion his father was beaten. It is correct to say that there was no further finding as to why the identity card was taken off the applicant by the authorities. Once again, this event took place in the context of the applicant being questioned about the LTTE. As noted above, the IAA did consider the questioning of the applicant at the time, and found that the enquiries were focused on intelligence gathering from the applicant’s knowledge of others. The IAA also considered the impact on the applicant upon return of the fact that identity card had been confiscated in 2010.
Thirdly, the IAA accepted that the applicant’s family had provided low-level LTTE support but it did not accept that this led to the family being known to be LTTE supporters or the cause of any of the authorities’ previous interests in the applicant.
There was no claim expressly made or clearly emerging from the material before the IAA that the matters the subject of particulars and the implications of why they happened amounted to some distinct basis of feared harm.
The contention that the IAA failed to have regard to the evidence in respect of the implication of the injuries, the implications of retention of documents and that the authorities were aware of the applicant’s association with the LTTE are all rejected. This is because such complaint fails on the face of the IAA’s decision.[12] These matters were clearly considered by the IAA in the framework of the applicant’s claims.
[12] CB: 98 at [13]; the IAA considered the physical assault of the father; CB: 98 at [15] and CB: 102 at [30]-[31] the IAA considered the retention of the applicant’s identity card, and at CB: 97-98 at [12], CB: 101 at [25] the IAA specifically considered the authorities’ suspicions about the applicant’s family’s involvement with the LTTE.
Particular (d)
In the submissions filed on the applicant’s behalf, the applicant contends as follows:
… the IAA erroneously fails to consider its own finding, that the Applicant was detained for 3 days, when relying on the failure to have been detained overnight to find that the Applicant was not of interest to authorities (see [16], contra [11]). This alone, it is submitted, is sufficient to demonstrate error.
(emphasis in original)
It is appropriate firstly, to set out the relevant passages from the IAA’s decision:
[11] With a couple of exceptions (discussed below), the applicant has been generally consistent in his description of the claimed incidents and at the SHEV interview he appeared to be recalling his own personal experience. I accept: the applicant and his father were detained for three days in 2010 during which time they were questioned about LTTE involvement and whether they knew of LTTE supporters in the area; two months later the applicant was again detained and questioned for the day; thereafter, the authorities visited he and his father at home around every two months to search the home and question them along the same lines as the previous enquiries. I accept that in late 2011 the applicant was also harassed at his grocery store by Navy officers who refused to pay for items and questioned him about whether he knew of any LTTE supporters in the area. I also accept he was detained for a day in November 2011 along with 15 other young men after someone hoisted the LTTE flag for Remembrance Day.
…
[13] In summary, I accept the applicant was detained at a camp three times and was physically assaulted on two occasions and forced to do manual labour on the other occasion (whilst at the same time his father was badly beaten). The applicant has mentioned he was tortured however while I accept the applicant’s experiences were terrible, I am not satisfied on the evidence the applicant has provided about the times he was detained and assaulted that the assaults amounted to torture.
[14] On the evidence, during the applicant’s periods of detention and during several other rounds of questioning (at the house and at the store), the applicant faced the same line of enquiry: whether he had been involved with the LTTE or knew anyone else who had been an LTTE member or supporter….
[15] Significantly, the last time the applicant was taken in for questioning was in November 2011, in a group arrest of 16 males…
[16] The information before me does not indicate the applicant was ever formally charged with any offences and nor was he ever detained overnight (or longer) or taken for rehabilitation. This, and the fact that he was not detained for any period during his last 10 months in Sri Lanka indicates to me that the authorities had no major concerns about the applicant’s activities. I find they did not consider him to be an LTTE member or supporter.
(emphasis added)
The applicant claimed that he (together with his father) had been detained in December 2010 for three days at a camp, that he was interrogated and that his father was beaten badly. The IAA accepted that this had occurred at [11] and [13] of its reasons.
The applicant claimed that about two months after the December 2010 detention for three days, he was again taken from his home to a camp, interrogated and physically assaulted. He was released the same day. The IAA accepted that this had occurred at [11] of its reasons.
The applicant claimed that in November 2011, he was arrested (together with 15 other young men) and taken to a camp, where he was interrogated and released the same day. The IAA accepted that this had occurred at [11] of its reasons.
The IAA’s finding at [16] that the applicant was never detained overnight or longer is clearly contrary to its earlier finding at [11] that the applicant was detained for three days in 2010.
At [25] the IAA refers to “the previous times the applicant was detained”, at [26] the IAA refers to “the applicant’s previous detention”, at [30] the IAA refers to accepting that the applicant “has been subject to detention…” and at [44] where the IAA refers to its earlier findings says:
I found there is not a real chance that the applicant faces serious harm on return to Sri Lanka in connection with the support his mother’s family provided in the cease-fire period; his previous periods of questioning and detention and being monitored; the absence of his NIC; because he is a young Tamil male fisherman from Kayts, Jaffna in the Northern Province and is now in; or because he would be returning as a failed asylum seeker who departed illegally and spent several years in Australia.
It is unclear and indeed impossible to ascertain whether these later references to the applicant’s detention are references to the findings at [11] or the findings at [16] as to the periods of the applicant’s detention. As already noted, the two findings are inconsistent.
The first respondent contends that the reference at [16] to the applicant’s detention by the authorities not being “overnight (or longer)” was simply a slip, and that it was “nothing more than infelicitous or loose language and is not representative of the IAA’s actual consideration of the applicant’s claims.”[13] The first respondent submits that the reasons of the IAA ought to be read as a whole, and in doing so, it is clear that the loose language used in [16] is not a critical step in the IAA’s path of reasoning. The applicant submits that the difficulty with accepting this submission made on behalf of the first respondent, is that it is not so clear. If the language was simply “loose” it is unlikely that there would be a reference to “or longer” in the same sentence. It is an error.
[13] First respondent’s submissions filed 28 July 2022 at [44]
At [16] the IAA found that the “authorities had no major concerns about the applicant’s activities”. This finding was based on four matters:
a.That the applicant was never charged;
b.That the applicant was never detained overnight (or longer);
c.That the applicant was never taken for rehabilitation; and
d.That he was not detained for any period during his last 10 months in Sri Lanka.
The applicant had never made a claim that he was formally charged or that he had been taken for rehabilitation. The reference to such matters could only have been a reference to them in general, and the applicant does not in any event take issue with such reference. More importantly though and relevant for the purposes of the applicant’s argument on judicial review, the IAA made a clear reference to the applicant never being detained overnight (or longer). As earlier noted, this was wrong. It is unclear what weight, the IAA afforded each of these three findings when it formed the view that “This, and the fact that he was not detained for any period during his last 10 months in Sri Lanka indicates to me that the authorities had no major concerns about the applicant’s activities” (emphasis added). The IAA’s finding that the authorities in Sri Lanka did not consider the applicant to be a member of the LTTE or their supporter thereafter flowed.
The issue is whether the finding at [16] was material in the sense described by the authorities. An error will be material only if it could realistically have deprived the applicant of the opportunity of a successful outcome.[14] The existence or non-existence of a realistic possibility that the decision could have been different is a question of fact in respect of which the applicant bears the onus of proof.[15]
[14] Hossain v Minister for Immigration and Boarder Protection [2018] HCA 34 at [72] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]
[15] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]
It is necessary to consider how the IAA’s decision was in fact made.[16]
[16] Nathanson v Minister for Home Affairs [2022] HCA 26 at [39]
While the finding that the applicant was not a member or supporter of the LTTE was one of the critical findings which the IAA made as is it was used as part of the overall reasoning by the IAA in rejecting the applicant’s claim for protection, the same cannot be said of the erroneous finding at [16] of the IAA’s reasons: that the applicant had not been detained overnight (or longer), when read in the context of the whole of the decision.
This is particularly so when [11] – [14] of the IAA’s decision is properly read. It is clear from [12] that the IAA did not accept that the authorities continued to approach the applicant because they perceived his family as having some association to the LTTE. It is clear from [14] that notwithstanding the finding that the applicant was detained for 3 days, the IAA found that much of the questioning was focused on getting the applicant to tell them what knowledge he had of LTTE supporters or operatives in the local area. The IAA found that “rather than considering the applicant himself was an LTTE member or supporter, the enquiries were focused on intelligence gathering from the applicant’s knowledge of others”.
As such, the findings at [16] should not be read in a vacuum. Indeed, [16] is really a confirmation of the earlier findings about the IAA’s assessment of the applicant’s and his family’s involvement in the LTTE, and consequently the authorities’ interest in the applicant consequent upon that. The finding at [16] of the IAA’s reasons is no more than errant fact-finding. The fundamental question is the importance of the material to the exercise of the IAA’s function and the seriousness of the error.[17]
[17] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]
The applicant has not established, as a matter of fact, the existence of a realistic possibility that the decision could have been different had the IAA not made that error in [16] of its reasons.
Ground 2 is not made out.
Conclusion
The IAA’s decision is not affected by jurisdictional error in a material way.
The application for judicial review is dismissed with costs.
61 I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 31 August 2022
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