DLS18 v Minister for Immigration
[2020] FCCA 29
•28 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLS18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 29 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Authority considered all of the applicant’s claims or failed to give the applicant the opportunity to comment considered – whether the Authority erred in dealing with two non-disclosure certificates considered – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCCA 58 |
| Applicant: | DLS18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 361 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 May 2019 |
| Date of Last Submission: | 11 December 2019 |
| Delivered at: | Sydney, via telephone to Perth |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 4 July 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 361 of 2018
| DLS18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 June 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan who arrived in Australia at Christmas Island by boat as an unauthorised maritime arrival on 19 December 2012.[1]
[1] Court Book (CB) 3, 37, 44 and 50
In a letter dated 12 April 2016 the Minister’s Department advised the applicant that the Minister had exercised his power under s.56A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow him to make a valid application for either a temporary protection (subclass 785) visa or a Safe Haven Enterprise Visa (subclass 790) (SHEV).[2]
[2] CB 18-19
On 2 August 2016 the applicant made an application for a protection visa which was supported by statutory declaration made by the applicant on 1 July 2016.[3]
[3] CB 23-67
The applicant was invited to attend an interview with the delegate on 24 October 2016 to discuss his visa application and his protection claims.[4]
[4] CB 84-86
On 16 November 2016 the delegate made a decision refusing to grant the applicant a protection visa.[5]
[5] CB 110-118
In accordance with s.473CA of the Migration Act the delegate’s decision was automatically referred to the Authority to conduct a review of the decision. The applicant was advised of that referral.[6]
[6] CB 132-145
The applicant’s representative provided a written submission to the Authority on 8 December 2016.[7]
[7] CB 151-157
On 1 February 2017 the Authority invited the applicant to comment on information that it advised may be the reason, or part of the reason, for affirming the delegate’s decision.[8]
[8] CB 158-162
On 26 February 2017 the applicant’s representative forwarded a response to the Authority’s invitation to comment.[9]
[9] CB 164-180
On 6 June 2017 the Authority made a decision affirming the delegate’s decision not to grant the applicant a protection visa. The Authority advised the applicant of its decision on 9 June 2017.[10]
[10] CB 196 and 190-193
On 20 June 2017 the applicant applied to this Court for judicial review of the Authority’s decision. The Authority’s decision was quashed by order of the Court made on 1 February 2018.[11]
[11] CB 218-219
On 19 February 2018 the applicant’s representative provided further submissions to the Authority.[12]
[12] CB 220-227
On 19 June 2018 the Authority made a decision affirming the delegate’s decision refusing to grant the applicant a protection visa.[13]
[13] CB 238
The applicant had claimed to have been captured and imprisoned by a local military commander between 2004 and 2007. The Authority did not accept that claim, having regard to other evidence concerning the applicant’s whereabouts over that period, and inconsistencies in the applicant’s own account of circumstances following his escape in 2007. The Authority accepted that the applicant is a Hazara Shia from Kandahar but did not accept that the applicant faced a real chance or real risk of serious or significant harm for those reasons.
The current proceedings
These proceedings began with a show cause application filed on 4 July 2018. The applicant continues to rely upon that application. There are two grounds in that application:
1. The Assessor failed to properly consider all of my claims.
2. The Assessor didn’t give me a chance to comment on one aspect of my claims.
The application was supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book lodged on 19 September 2018.
The matter came before me for a final hearing on 27 May 2019. At that time, the applicant complained that, although he had previously been legally represented, his lawyer had ceased acting for him and he was looking for other lawyers. No Notice of Appearance by any legal representative had been filed. I noted that the applicant had attended the first court date directions. To the extent that the applicant was seeking an adjournment, that was declined. The Minister had filed pre-hearing submissions which were read to the applicant by the interpreter.
It became apparent during argument that, apart from the grounds raised by the applicant, there was an issue concerning two non-disclosure certificates purportedly issued to the Authority.[14] I also noted that the Authority, on 30 May 2017, had requested additional documents.[15]
[14] CB 123, 129
[15] CB 125
I gave the parties the opportunity to file and serve written submissions in relation to the issues discussed at the hearing by 24 June 2019 (in the case of the applicant) and by 22 July 2019 (in the case of the Minister). Both parties took up that opportunity. By that stage, the applicant was represented by counsel.
I also received into evidence the affidavit of Sara Anicic, made on 23 July 2018 concerning a direction issued by the senior reviewer of the Authority under s.473GD(1) of the Migration Act.
It subsequently became apparent that this matter was affected by the appeal to the High Court in BVD17 v Minister for Immigration, which was heard by the High Court on 13 June 2019. I decided to defer judgment pending the outcome of that appeal and invited the parties to make any further submissions they wished within seven days of the High Court’s judgment being delivered.
The High Court delivered judgment on 9 October 2019.[16] Further submissions were made by the applicant on 14 November 2019. The Minister filed further submissions on 11 December 2019.
[16] BVD17 v Minister for Immigration [2019] HCA 34
Consideration
There is no substance to the grounds advanced by the applicant in his judicial review application. In that regard, I agree with the Minister’s submissions.
Ground 1 – Authority failed to properly consider all of the applicant’s claims
Ground 1 contains no particulars and does not identify which claims it is alleged that the Authority did not consider. Nor does the applicant’s affidavit sworn on 2 July 2018 contain any particulars of the applicant’s grounds of application.
The failure to particularise a ground of application is itself sufficient to warrant dismissal of that ground.[17]
[17] see AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35]; WZAVW v Minister for Immigration [2016] FCA 760 at [35]
Further, the reasons of the Authority for its decision of 19 June 2018 demonstrate that it did consider all of the claims made by the applicant.[18] The Authority also had regard to the submissions made by the applicant’s representative.[19]
[18] CB 241-250 at [15]-[44]
[19] CB 239-240 at [5]-[12]
To the extent that the applicant claims that the Authority failed to “properly” consider his claims, he is in reality seeking to impermissibly challenge the merits of the Authority’s decision.
Ground 1 does not disclose any jurisdictional error by the Authority.
Ground 2 – Authority did not give the applicant a chance to comment on one aspect of his claims
In the absence of any particulars or evidence (the applicant’s affidavit sworn on 2 July 2018 merely annexes a copy of the Authority’s decision and reasons) it is not possible to determine if the Authority made any error as asserted.
While Ground 2 is suggestive of a breach of procedural fairness by the Authority, without any particulars or evidence this ground cannot be made out.
Further, and in any event, the scheme of Part 7AA of the Migration Act is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department pursuant to s.473CB(1) of the Migration Act, and conduct that review without accepting or requesting new information or interviewing the referred applicant.[20]
[20] see BVD17 v Minister for Immigration (2018) 261 FCR 35 at [31]. The Authority's procedural fairness obligations are exhaustively stated in Division 3 of Part 7AA of the Migration Act: Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481; (2018) 353 ALR 600 at [20]–[38]
Ground 2 is also not made out.
The certificates issue
The applicant filed submissions in relation to this issue on 18 June 2019. In those submissions, the applicant drew attention to the fact that it is common ground that he and his representative were not provided with the two certificates issued by the Minister purportedly under s.473GB of the Migration Act. The applicant contended that this prevented him and his representative from considering the validity of the certificates. He further submitted that this constitutes a jurisdictional error on the part of the Authority.
The applicant also contended that the senior reviewer in this case lacked a valid direction to undertake the review.
In his closing submissions following the judgment of the High Court in BLV17, the applicant conceded that s.438(2)(a) precludes procedural fairness obligations on the Authority to disclose to an applicant in a review under Part 7AA the fact of notification under s.473GB(2)(a). The applicant sought to distinguish the present case from BLV17 on its facts but conceded that, while the Authority relied on the material covered by the certificates and did not disclose the certificates or the material, that failure did not affect the decision of the Authority.
I accept the Minister’s submissions in relation to these matters.
The delegate’s decision of 16 November 2016 refusing to grant the applicant a protection visa and documents relevant to the applicant’s case were referred to the Authority on that date in accordance with ss.473CA and 473CB of the Migration Act,[21] together with the delegate’s certificate under s.473GB(5) of the Migration Act in respect of part of that referred material.
[21] CB 132
On 30 May 2017 the Authority sought further documents from the Minister’s Department which the delegate had referred to in her decision and during her interview with the applicant.[22]
[22] CB 124-126
In response to the Authority’s request, the delegate provided further documents to the Minister’s Department’s WA TPVP Review on 31 May 2017 pursuant to s.473CB, together with a further certificate she issued under s.473GB(5) of the Migration Act dated 31 May 2017.[23]
[23] CB 127-129
The further documents and the further s.473GB(5) certificate were provided by WA TPVP Review to the Authority on 2 June 2017.[24]
[24] CB 130-131
The documents that were provided to the Authority on 2 June 2017 were documents that were before the delegate when she made her decision refusing to grant the applicant a protection visa, and accordingly were not “new information” within the meaning of that term in s.473DC of the Migration Act.
In making its decision on 19 June 2018 affirming the decision not to grant the referred applicant a protection visa, the Authority had regard to the material given to it on 16 November 2016 and 2 June 2017.[25]
[25] see the Authority’s reasons at [4] (CB 239)
Irrespective of the two certificates issued by the delegate pursuant to s.473GB(5) of the Migration Act, the Authority was required to review the delegate’s decision by considering the review material provided to it under s.473CB.[26]
[26] see s.473DB(1) of the Migration Act
Subsection 473DB(1) of the Migration Act also provides that, subject to Part 7AA, the Authority is to review the decision referred to it under s.473CA by considering the review material provided to it under s.473CB without accepting or requesting new information, and without interviewing the referred applicant.
Further, the documents and information provided to the Minister’s Department by the applicant’s mother and sister and which is the subject of the s.473GB(5) certificates was, by its very nature, given “in confidence” within the meaning of that term in s.473GB(1)(b) of the Migration Act, and accordingly the certificates were not invalid.
I address below the consequence should I be wrong in finding that the certificates are valid.
The Authority’s discretion under s.473GB(3)
Section s.473GB(1)(b) of the Migration Act does not confer a discretion upon the Authority in relation to disclosure to a referred applicant where the Secretary has given documents or information to the Authority and notified the Authority that s.473GB applies in relation to the documents or information.
Rather, the Authority’s discretion to give a document or information to a referred applicant is provided by s.473GB(3)(b). The Secretary did not give any advice to the Authority in relation to those documents which were provided to the Authority under s.473CB and which were listed in the s.473GB(5) certificates given to the Authority.
The senior reviewer’s direction
On the same date as the Authority’s decision on 19 June 2018, the Authority’s senior reviewer issued a written direction pursuant to s.473GD(1) directing that the information referred to at [20]-[21], [24]-[31] and [38] of the Authority’s decision relating to offshore visa applications made by or on behalf of the applicant and his family members, and passenger cards of the applicant’s mother and sister, must not be published or otherwise disclosed by the applicant or his representatives.[27]
[27] CB 237
The making of that direction under s.473GD(1) by the senior reviewer does not give rise to any jurisdictional error on the part of the Authority in relation to its decision made on 19 June 2018 affirming the decision refusing to grant the applicant a protection visa.
While s.473GD(1) of the Migration Act only gives power to the President of the Authority to give such a written direction, pursuant to s.473JF the President may delegate, in writing, all or any of his or her powers or functions under Part 7AA to the senior reviewer.
The fact that the senior reviewer’s direction does not record that it is made pursuant to a power delegated by the President of the Authority under s.473JF (see [29] of the applicant’s submissions) is irrelevant. In such circumstances, there is a presumption of regularity that the power was so delegated by the President. In any event, the President delegated his power to give directions under s.473GD(1) of the Migration Act to the senior reviewer on 18 September 2015.[28] The Minister sought and received leave of the Court to rely upon this affidavit.
[28] see annexure “SA1” to the affidavit of Ms Anicic affirmed on 22 July 2018
The applicant contends that it is unlikely that the legislature intended that the power to create a serious offence punishable by two years’ imprisonment, namely the offence under s.473GD(4) of the Migration Act of contravening a direction given under s.473GD(1), should be delegated by the President save subject to conditions.
However, s.473JF permits the President to delegate any of his or her powers or functions under Part 7AA to the senior reviewer, and provides that the President may (but is not required to) give written directions in relation to any such delegated power or function.
The applicant also complains that the direction issued by the senior reviewer should have been referred to in the Authority’s reasons, “together with reasons as to why it was considered necessary”, and that on its face the direction simply implemented the notification given to the Authority without any adequate consideration of its merits.
However, s.473GD(1) of the Migration Act permits the President to give a written direction about the publication or disclosure of information or documents if he or she is “satisfied” that it is “in the public interest” that there should not be publication or disclosure. The power in s.473GD(1) is not otherwise prescribed. Here, the senior reviewer’s direction states that the senior reviewer is “satisfied that it is in the public interest” that certain information in the Authority’s decision of 19 June 2018 should not be published or otherwise disclosed. Subsection 473GD(1) does not require that the reasons for that satisfaction be specified in the written direction.
At [20]-[21], [24]-[31] and [38] of the Authority’s reasons, the Authority disclosed matters covered by the delegate’s two s.473GB(5) certificates. The Authority’s reasons were provided to the applicant, and accordingly, s.473GB(4) required the Authority to give a direction under s.473GD in relation to those matters.
Further, the senior reviewer issued the direction under s.473GD(1) “[b]eing satisfied that it is in the public interest” to do so. The Authority does not need to give reasons for its procedural decisions.[29] The direction is valid on its face, and it was open to the Senior Reviewer to form the relevant state of satisfaction.
[29] BVD17 v Minister for Immigration [2017] FCCA 3046 at [30]
Accordingly, the senior reviewer’s direction under s.473GD(1) was not made beyond power and is not invalid, as contended by the applicant.[30]
[30] see [39] of the applicant’s submissions
Further, and in any event, even if the senior reviewer’s direction is invalid, that cannot give rise to any jurisdictional error on the part of the Authority in relation to its decision made on 19 June 2018 affirming the decision not to grant the applicant a protection visa. The senior reviewer’s direction was made after the Authority’s decision and cannot have had any effect on that decision. That is, in effect, conceded by the applicant.
High Court decision in BVD17
The decision of the High Court in BVD17 does not alter the position. For present purposes, it is sufficient to refer to the decision of the High Court at [16] and [34]-[36] where the Court stated:
Two further provisions of Pt 7AA are also appropriate to be mentioned. Section 473EA, which is located within Div 4, requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both "the decision of the Authority on the review" and "the reasons for the decision"[31]. The analysis in Minister for Immigration and Citizenship v SZGUR[32] of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).
[31] See also s.25D of the Acts Interpretation Act 1901 (Cth).
[32] (2011) 241 CLR 594 at 606 [32], 616-617 [69], 623 [91]-[92]; [2011].
…
The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16[33] and in Minister for Immigration and Border Protection v DZU16[34]. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.
Consistent with the earlier conclusion of the Full Court in BBS16[35], the entirety of the content of the Authority's obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.
For completeness, the overlapping operation of s 473DA(2) in the circumstances giving rise to the present appeal is also to be noted. The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3)[36]. Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b). However, the prescription does operate to preclude an obligation on the part of the Authority to give such material to a referred applicant from otherwise arising as a matter of implication.
[33] (2017) 253 FCR 475 at 491 [67].
[34] (2018) 253 FCR 526 at 552-553 [99].
[35] (2017) 257 FCR 111 at 144 [100].
[36] Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481 at 492 [49], 499-500 [97]; 353 ALR 600 at 613, 623-624
In Minister for Immigration v SZMTA[37] the majority held that such errors by the Tribunal would not amount to jurisdictional error unless the errors were material, a breach being material “only if compliance could realistically have resulted in a different decision”.[38] By contrast, Nettle and Gordon JJ concluded that such errors constituted jurisdictional error at [117], but in relation to the appellant SZMTA, concluded that the failure of disclosure could not have deprived him of the possibility of a successful outcome on remittal to the Tribunal, and that it was therefore appropriate that relief should be refused in the exercise of the Court’s discretion.[39]
[37] [2019] HCA 3
[38] at [38] and [45]
[39] at [128]
Here, the Minister submits that, as in SZMTA, any invalid notification by the Secretary and/or the failure of the Authority to disclosure that notification to the applicant did not amount to jurisdictional error by the Authority, as the absence of such errors could not realistically have resulted in a different decision by the Authority. Alternatively, any such errors could not have deprived the applicant of the possibility of a successful outcome if the matter was to be remitted to the Authority, and relief should be refused in the exercise of the Court’s discretion.[40]
[40] The Minister also maintains that the Authority’s failure to notify the applicant of the existence of the s.473GB certificate and the material covered did not amount to jurisdictional error, as no procedural fairness obligation on the part of the Authority was enlivened, given the operation of Part 7AA and the provision in s.473DA of the Migration Act: see BVD17 v Minister for Immigration (2018) 261 FCR 35, Minister for Immigration v BBS16 (2017) 158 ALD 198 at [90]-[101] and AYF16 v Minister for Immigration [2018] FCAFC 129 at [29]-[34] and [37]
The High Court held in BVD17 that unlike the giving of a notification (of a certificate) under s.438(2)(a) of the Migration Act, procedural fairness does not oblige the Authority to disclose the fact of notification under s.473GB(2) to a referred applicant in a review under Part 7AA of the Migration Act, because s.473DA precludes such an obligation from arising.[41]
[41] at [2] and [35]
The High Court concluded that there was no breach of procedural fairness by the Authority failing to advise the appellant of the certificate issued under s.473GB(1) of the Migration Act and/or the notification to the Authority pursuant to s.473GB(2).[42]
[42] at [33]-[35]
The High Court also rejected the appellant’s argument that the Full Federal Court was wrong to conclude that there was insufficient evidence from which to infer that the Authority failed to consider exercising the discretion conferred by s.473GB(3)(b), based solely on an inference sought to be drawn from the fact that the Authority’s statement of reasons contained no reference to the discretion.[43]
[43] at [37]-[40]
No jurisdictional error in acting upon invalid certificates
At [15] of the Minister’s submissions dated 22 July 2019 it was submitted that there was no jurisdictional error in the Authority acting upon the two s.473GB(5) certificates even if they were invalid, relying upon Minister for Immigration v BBS16[44] at [85]-[99].
[44] (2017) 257 FCR 111
That submission is now supported by BVD17, as at [35] the High Court stated that consistent with the earlier conclusion of the Full Federal Court in BBS16 at [100], the entirety of the content of the Authority’s obligation of procedural fairness in the content of a notification under s.473GB(2)(a) is to be found in the outworking of the discretions conferred by s.473GB(3).
The Full Federal Court’s conclusion in BBS16 at [100] that the second limb of Beach J’s analysis in MZAFZ v Minister for Immigration[45] (that failure to disclose a certificate under s.375A of the Migration Act constituted a breach of procedural fairness) has no application in a Part 7AA review was for “similar reasons”, being the reasons at [85]-[98] which led to its other conclusion at [99] that the first limb of Beach J’s analysis in MZAFZ, that it was jurisdictional error per se for the Authority to act upon an invalid certificate, had no application to a Part 7AA review. In referring with approval to the Full Federal Court’s conclusion in BBS16 at [100] and the reasons upon which it was based, the High Court expressed no disagreement with the conclusion at [99] based on the same reasons.
[45] (2016) 243 FCR 1
Authority’s discretion under s.473GB(3)(b)
Paragraph 24 of the applicant’s BVD17 submissions (dated 14 November 2019) notes that in BVD17 the High Court held that the failure of the Authority to refer to the exercise of the s.473GB(3)(b) discretion in its decision (its reasons), and in the absence of further evidence from the appellant, did not support an inference that it had not exercised the discretion. The applicant does not suggest that this is not equally the case here.
However, the applicant then submits at [24] that this matter goes further in that the Authority issued a direction under s.473GD(1) of the Migration Act. The applicant’s BVD17 submissions then set out the terms of the direction at [25], but concede at [26] that the direction was given after the Authority’s determination and “cannot be said to have influenced the [Authority’s] decision to affirm the delegate’s refusal of a protection visa”.
The Minister notes that in the conclusion of the applicant’s BVD17 submissions at [30] it is submitted at [30.2] that the Authority was required to consider the exercise of its discretion at s.473GB(3)(b), and at [30.3] that the reasonable exercise of that discretion “required that the Authority reveal this [the certificate] to[the applicant]”. However, it is accepted at [30.4] that the limited character of the evidence (the subject of the certificates) “taken into consideration with other unimpeachable evidence is sufficient to warrant refusal of relief on discretionary grounds”.
Authority’s reliance upon material the subject of the certificates
The applicant’s BVD17 submissions at [27] and [28] refer to the nature of the serious harm feared by the applicant and the rejection of his claims by the Authority, including that it had made credibility findings adverse to the applicant. Paragraph 29 then states that:
In those circumstances it has to be accepted that the material that was not disclosed to the applicant, even if it should have been disclosed in whole or in part, viewed in the context of the other evidence rejected by the Authority cannot be said to have affected its decision sufficiently to support the discretionary grant of relief.
I accept the Minister’s submission that, while [29] and [31] of the applicant’s BVD17 submissions are couched in terms of the refusal of relief on discretionary grounds, the applicant’s concession is more properly to be seen as an admission that even if there was an error by the Authority in failing to exercise its discretion under s.473GB(3)(b) and not disclosing the certificates and the material to which they applied to the applicant, any such error was not a jurisdictional error because that error was not “material”, because disclosure of that material to the applicant could not “realistically have resulted in a different decision”.[46]
[46] SZMTA per Bell, Gageler and Keane JJ at [30], [44] and [45]; see also the Minister’s outline of submissions dated 6 May 2019 at [28]
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 February 2020
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