Ebe18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 353
•15 April 2021
FEDERAL COURT OF AUSTRALIA
EBE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 353
Appeal from: EBE18 v Minister for Immigration and Anor [2020] FCCA 1554 File number: NSD 979 of 2020 Judgment of: NICHOLAS J Date of judgment: 15 April 2021 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court (“the FCC”) dismissing an application for judicial review of a decision of the Immigration Assessment Authority – whether Authority’s decision under s 473DC of the Migration Act 1958 (Cth) was legally unreasonable – where appellant had relied on four affidavits in earlier proceeding before the FCC concerning a prior decision of a differently constituted Authority – whether Authority should have exercised discretion to get affidavits or other information from appellant – whether FCC erred in holding that decision not legally unreasonable – no error demonstrated – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196
BVZ16 v Minister for Immigration and Border Protection and Anor (2017) 254 FCR 221
Minister for Immigration and Border Protection v CRY16 and Anor (2018) 253 FCR 475
Minister for Immigration and Border Protection v DZU16 and Anor (2018) 253 FCR 526
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 55 Date of hearing: 16 March 2021 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T Hillyard Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 979 of 2020 BETWEEN: EBE18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia (“the FCC”) made on 3 August 2020: see EBE18 v Minister for Immigration and Anor [2020] FCCA 1554. By that judgment the primary judge ordered that the appellant’s amended application for judicial review of a decision of the second respondent (“the Authority”) be dismissed with costs.
The appellant arrived in Australia on 22 April 2013 as an unauthorised maritime arrival. On 27 September 2017 he applied for a Safe Haven Enterprise visa (“SHEV”). On 19 January 2018 a delegate of the Minister (“Delegate”) refused to grant the appellant a SHEV. The matter was referred to the Authority on 25 January 2018.
On 14 March 2018 the Authority affirmed the Delegate’s decision. The appellant then applied to the FCC for judicial review of the first Authority’s decision. On 10 December 2019, the FCC held that the first Authority’s decision was affected by jurisdictional error and remitted the matter to the Authority for reconsideration: see EBE18 v Minister for Home Affairs [2019] FCCA 3471 (“the 2019 proceedings”).
On 6 February 2020 the Authority (which was now differently constituted) notified the appellant that it was reconsidering his case and informed him that he could provide new information or written submissions to the Authority in accordance with its practice direction. The direction relevantly stated:
Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us …
Neither the appellant nor the Minister provided any new information to the Authority, and on 27 February 2020 the Authority affirmed the decision to refuse to grant the appellant a SHEV. The appellant then filed an application for judicial review of the Authority’s decision in the FCC. The primary judge ordered that the amended application for judicial review be dismissed with costs.
The appellant was not legally represented before the FCC. In this Court a Registrar made a pro bono referral which was accepted by Senior Counsel. Senior Counsel subsequently sought leave to withdraw which was granted by a Registrar. As a result, the appellant was unrepresented at the hearing of his appeal, however he was aided by an interpreter.
The notice of appeal filed by the appellant reproduces the grounds of review that were relied on before the primary judge. These grounds do not engage with, or identify any error in, the primary judge’s reasons. In addition to the notice of appeal, the appellant filed written submissions. Two days before the hearing of his appeal the appellant forwarded to the Court an additional document entitled “The Appellate Argument” to which he attached two annexures which were apparently intended to support a submission that the primary judge’s decision was affected by bias.
In email correspondence the appellant indicated that these documents were not submissions but were instead a record of what the appellant intended to say at the hearing. I will say more about these documents later in these reasons.
THE AUTHORITY’S DECISION
The appellant’s claim for protection was set out in a statutory declaration dated 27 September 2017 which accompanied his SHEV application. According to the appellant’s statutory declaration:
(a)The appellant’s parents and grandparents were stateless Palestinians who moved to Syria after the Second World War.
(b)When he was a child, his father was involved with Hamas but he did not know the extent of his father’s involvement. His father stopped working for Hamas when his mother died and they moved frequently as his father was afraid Hamas would interpret his resignation as his being an infidel and traitor and would kill him.
(c)As a stateless Palestinian in Syria, the appellant could not legally work or own a business. He could own a car but not land or real property and his medical needs could only be met at a UN hospital.
(d)On 24 June 2012, the appellant’s wife, three sons and father were killed at home by a rocket fired by the Syrian regime. The appellant lost his official identity documentation when his home was destroyed.
(e)The appellant fought with a police officer when he tried to find out what happened to his family, and was charged with assault and held for 10 days. After 10 days, army officers blindfolded him and took him somewhere where he was interrogated and tortured. He was held for about six months and then released. He attempted suicide after this incident.
(f)The appellant then moved into his neighbour’s home and was visited by men on several occasions for three months who smashed his belongings.
(g)The appellant was smuggled to Iraq for a fee and then came to Australia.
(h)The appellant fears harm as a stateless Palestinian and claims that he would be arrested, detained, tortured and killed by the Syrian regime or by armed Shia militant groups.
In addition to the matters raised in the appellant’s statutory declaration, and in response to some of the information put to the appellant at his SHEV interview, his representative made a number of additional claims which were to the following effect:
(i)The appellant would face persecution as a Sunni Muslim if returned to Syria;
(j)He lost his wallet in Adelaide, including his Proof of Age identity card, and had to close his bank account after unusual activity;
(k)He had never visited Jordan or transferred money outside of Australia;
(l)He was not known by any other name or linked to the people connected to the Facebook page, as put to him in the delegate interview.
The Authority’s reasons for decision record that it had regard to the material given to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”). The Authority’s reasons also indicate that the Authority considered whether to exercise its power under s 473DC of the Act to obtain new information and that it declined to do so. The Authority relevantly said at [8]:
… I have considered whether to exercise my discretion under s.473DC(3) of the Act to obtain new information about the applicant's ties to Syria and Jordan but given my finding that he has not been truthful in the past and given the previous opportunities that the applicant has had to make his claims about his nationality, I do not consider that I would obtain any useful new information from that process. I have decided not exercise that discretion.
The Authority’s reasons contain a detailed analysis of the appellant’s evidence and other material before the Authority which led it to conclude that the appellant had not provided a truthful account of his place of origin, his family’s circumstances or the events which he claims caused him to seek asylum in Australia.
The Authority noted that the appellant’s accounts of being born and having lived in Syria and the events which he claims occurred in Syria are based solely on what the appellant told the Department and were not supported by any corroborative evidence. In particular, it drew attention to the lack of corroborative evidence relating to the deaths of his family members who, according to the appellant, had lived their entire lives in Syria. The Authority noted that although the appellant claimed his identity documents were destroyed in the attack on his house, he had not been able to explain how he was able to pay a considerable amount of money to leave Syria, obtain a false passport, and buy an airline ticket without access to them.
The Authority also referred to the appellant’s SHEV interview in which the Delegate put information appearing on Facebook to the appellant which suggested that his three sons were alive and studying in Norway, and that they had not died in a rocket attack. The relevant Facebook account was linked to the appellant’s mobile number. During the interview the appellant confirmed that he had a Facebook account and that the mobile number recorded as his was correct.
The Authority also noted that during his SHEV interview the appellant was shown photographs of people living in Jordan who were friends of the Facebook account with the same (or similar) names of people who had received money from the appellant. The appellant was linked to these remittances by AUSTRAC reports which captured (among other information) the appellant’s identity document number. At one point during the interview, the appellant’s representative suggested that the identity document used to transmit these funds may have been stolen.
The Authority noted the appellant appears to have interacted with these people on Facebook which suggested that they were known to him, although when this was put to him he denied that the account was his. Later in the interview the appellant suggested that his Facebook account may have been hacked. He later stated that it had in fact been hacked. The Authority noted that the appellant did not provide any corroborative evidence from Facebook or otherwise to support this claim.
During the course of the SHEV interview the appellant’s migration agent asked for time to investigate the Facebook account and the money transfers. While further post-interview written submissions were provided by the appellant’s agent on 4 and 5 December 2017, no evidence was provided that his Facebook account had been hacked. These submissions instead repeated the claims made by the appellant that the account was not his or had been hacked, his identity document had been stolen and that he had not made the money transfers contained in the AUSTRAC reports. The submissions also referred to general articles about identity theft and the ability for multiple Facebook accounts to be associated with a mobile number. The Authority noted that the submissions “did not provide any information in support of the applicant’s own claimed experience such as a police report”.
The Authority did not accept that the appellant’s identity document had been stolen, or that his Facebook account had been hacked. Instead, the Authority considered it more likely that the Facebook account was controlled by the appellant, and that he had remitted money to family members in Jordan.
The Authority also noted that the appellant was represented when the matter was under consideration by the Delegate and that he had ample opportunity to provide evidence of his identity and his family’s identity to support his claims. The Authority further noted that the appellant did not provide any records of the work he claimed to have undertaken in Syria as a chef in prestigious hotels, any banking records, any school or training course records, or any records relating to his hospitalisation in Damascus.
The Authority also noted that the appellant, when questioned about his education and movements in Syria, Syrian political figures and events, and his own claims, appeared to have very limited knowledge.
The Authority found at [24]-[25]:
[24]I have considered the applicant's evidence cumulatively as to his nationality, his home location, his family circumstances, and the events which he claimed caused him to leave Syria and seek asylum in Australia and I do not accept that the applicant has been truthful about those matters. As noted above, he was not able to provide evidence for any of his claims and his verbal evidence provided at his SHEV interview was not particularly credible. I consider that the applicant has attempted to conceal the truth about his origins and, while I am willing to accept that he is of Palestinian origin or heritage, I do not accept that he is a former resident of Syria and I do not accept any of his claims relating to events in Syria including that his family were killed in a rocket attack, that he was arrested, detained and tortured by Syrian officials or that he was further harassed after release from hospital.
[25]I have considered whether the applicant has demonstrated a link to any other country. The financial transactions information obtained by the delegate show that he has been transferring money on a regular basis to people including those with an almost identical surname, who live in Jordan, primarily in Amman. He has tried to conceal his involvement in these transactions as well as his relationship with these persons. There is nothing in the material before me which explains why he would want to do so, other than not wanting to be linked with these persons and/or Jordan. I consider that the most likely explanation for concealing this link is that these people are other family members that he did not want the Department to be aware of and that he did not want his link to Jordan to be identified. Having regard to this and to my finding that he is not from Syria, I am satisfied that the applicant has a familial connection to Jordan. I note that the applicant advised at interview that both his parents were born in Palestine. They are from the suburb Bayt Dajan on the West bank. They left there a long time ago. He claimed they went to Syria in 1947. I do not accept that they went to Syria and I find it very likely, in the context of the applicant's connections to people with the same surname in Jordan, that they in fact went to Jordan.
On the basis of these findings, the Authority found that the appellant had been a resident of Jordan prior to coming to Australia and is and was a national of Jordan. The Authority also found that the appellant did not face a real chance of harm for any reason in Jordan, and that he did not meet the requirements of the definition of “refugee” in s 5H(1) or the requirements in s 36(2)(a) or s 36(2)(aa) of the Act. It affirmed the decision not to grant him a protection visa.
THE PRIMARY JUDGE’S DECISION
The appellant sought judicial review of the Authority’s decision based on two grounds raised in an amended application filed on 15 May 2020, as follows:
1.The decision is legally unreasonable because the applicant does not have a well-founded fear of persecution as he is a Palestinian usually resident in Jordan and not a Syrian refugee is not supported by probative evidence
2.The Second Respondent (the IAA) was legally unreasonable in deciding not to get new information from the Applicant pursuant to s.473DC(3) of the Migration Act 1958 (Cth).
(a)The matter was remitted back to the IAA from the Federal Circuit Court of Australia (FCCA), by the decision of EBE18 v Minister for Home Affairs & Anor [2019] FCCA 34.
(b)In the FCCA proceedings, the Applicant sought to admit new information by seeking to read 4 affidavits (altogether the New Information).
(c)The IAA, having made adverse findings about the Applicant’s credibility in relation to other evidence, determined not to exercise its discretion to get new information pursuant to s.473DC(3) of the Migration Act 1958 (Cth).
(d)In the circumstances, the IAA was required to consider, specifically address and make findings in relation to the New Information, rather than rely upon its earlier credibility findings on other matters to find that it would not obtain “any useful new information from this process” at paragraph [8] of the IAA decision.
In relation to ground 1, the primary judge held the appellant’s application for review reflected mere disagreement with the Authority’s rejection of the appellant’s claim to be a stateless Palestinian. The primary judge held the Authority’s finding was open for the reasons given by the Authority, including the lack of probative evidence to support the appellant’s claims.
The primary judge recorded that the appellant had made several oral submissions at the hearing of his application. The primary judge held that the appellant’s submissions, in respect of the Authority’s non-acceptance of his evidence that he was a stateless Palestinian from Syria and its finding that he was a national of Jordan, were directed at merits review. The primary judge also held that that the Authority provided logical and rational reasons in support of its adverse credibility findings, which included the lack of corroborative documentary evidence, the Facebook account, the financial transactions, and the inconsistencies and gaps in the appellant’s evidence regarding his life in Syria and his claims.
In relation to ground 2, the primary judge noted that the four affidavits were not information before the reconstituted Authority, but were instead filed in the first FCC proceeding. The primary judge held that since this information was not before the Authority it was not capable of giving rise to any jurisdictional error. Further, the Authority had provided an evident and intelligible justification for not exercising its power under s 473DC of the Act.
In respect of the appellant’s submission that he was not afforded the opportunity to provide further submissions or new information after the remittal of the matter, the primary judge found that it was clear from the orders made that the matter had been remitted to the Authority and that the appellant had “ample” opportunity between 10 December 2019 and 27 February 2020 to provide further information. The primary judge also referred to the Authority’s correspondence of 6 February 2020 which reminded the appellant of the opportunity to provide new information or further submissions to the Authority. The primary judge held that no jurisdictional error arose by reason of the steps taken by the Authority to reconsider the matter after remittal.
While not expressly contemplated in either ground of review, the primary judge referred to the appellant’s oral submission that the Authority erroneously found at [18] of its reasons that the appellant responded “yes” to a question during the SHEV interview about whether he “had sent money from Australia”. In response to this new issue the primary judge made directions requiring the first respondent to provide the Court with the transcript from the SHEV interview and any further submissions and provided a timetable for the applicant to respond. The primary judge then “by consent of both parties, dispensed with any further oral hearing and reserved [the Court’s] decision”.
Further material, including a transcript of the SHEV interview and an affidavit filed by the appellant were subsequently provided to the primary judge. In light of this material, the primary judge held that the transcript of the SHEV interview indicated that the Authority was correct in finding that the appellant responded “yes” to the question, and that the appellant’s contention to the contrary did not provide a basis for finding jurisdictional error.
The primary judge considered the affidavit filed by the appellant on 20 July 2020 in which the appellant “endeavoured to explain the transfer of funds”. His Honour held that the evidence did not establish that the Authority made any material error in interpretations and that the appellant’s affidavit reflected mere disagreement with adverse credibility findings which were open to the Authority. The primary judge held that the reasons of the Authority were logical, rational and reasonable.
Finally, the primary judge held that the Authority’s reasons did not support the appellant’s oral submission that the Authority had “predetermined the matter”. Rather, the Authority’s reasons were consistent with a review process conducted with an open mind reasonably capable of persuasion.
The primary judge concluded that the appellant had failed to make out any jurisdictional error in the Authority’s decision and dismissed the amended application.
I now turn to the appellant’s grounds of appeal.
APPEAL GROUND 1
The appellant submitted that the decision of the Authority was legally unreasonable because the finding that the “[a]ppellant does not have a well founded fear of persecution as he is a Palestinian usually resident in Jordan and not a Syrian refugee is not supported by probative evidence”.
The appellant did not clearly identify the basis for this ground of appeal, and did not identify any specific errors in the Authority’s reasons or the reasons of the primary judge. Indeed, parts of the appellant’s written and oral submissions focused on errors in the first Authority’s decision and, in particular, the reference in that decision to the appellant’s driver’s licence. No such error was identified in the decision the subject of proceedings before the primary judge.
The appellant’s first ground of appeal does no more than reflect his continuing disagreement with factual findings made by the Authority and its unwillingness to accept the veracity of his claims. The factual findings made by the Authority were open to it and based on a rational and logical analysis of the material that was before it. There was nothing before me to suggest that the Authority’s finding that the appellant was a national of Jordan was unreasonable in the legal sense: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 especially at [130]-[131] per Crennan and Bell JJ and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”).
APPEAL GROUND 2
The appellant submitted that the primary judge erred in not finding that the Authority’s decision not to get new information from him pursuant to s 473DC was legally unreasonable. The appellant’s submission focused on the failure by the Authority to get four affidavits filed by the appellant in the first FCC proceeding. The content of those affidavits was not before this Court, however the affidavits were described by Judge Baird in the 2019 FCC decision at [32]-[36] where his Honour said:
[32]… In the first affidavit affirmed 7 August 2018, the Applicant provided an explanation for his delay in filing the Application …
[33]In the second affidavit affirmed 10 October 2018, the Applicant repeated his explanation for the delay, provided an "additional submission" setting out a summary of some of his claims and journey to Australia, and reiterated his denials and explanations for the similarity of names in the Facebook account, the theft of his wallet, the thief using his information to make a fake driver's 1icence. He said his telephone number was only 2 years old (from 2016).
…
[35]I rejected the Applicant's third affidavit, affirmed 23 October 2018, which comprised articles obtained from the internet relating to Palestinian refugees from Syria, and a document headed "Palestinian Banana Boat" which appeared to be a telling of the Applicant's life story.
[36]I rejected parts of the fourth affidavit affirmed by the Applicant on 22 November 2018, and accepted the balance as submission, being extracts of case law and summaries. In the parts of the affidavit that I received into evidence, the Applicant stated he never had an Australian driver's licence, drew attention to the driver's licence having the same number as the Photo ID, said the cards relied on by the Authority and the Delegate were not real, and that he did not lie.
It is not clear that the information in the affidavits was relevant to the Authority’s decision. However, in my view such an assessment does not bear on whether the Authority’s exercise of its discretion under s 473DC was unreasonable. The discretion contained in s 473DC is focused on whether the Authority should “get” new information. It is only after the Authority decides to “get” new information that it must then determine whether or not it may consider that information: s 473DD of the Act.
The first respondent submitted that the Authority’s decision not to get new information was supported by an evident and intelligible justification. The first respondent’s submissions noted that the appellant had been provided with an opportunity to provide any further submissions or new information that he wished to the Authority and that the Authority’s letter of 6 February 2020 reiterated the time available for him to do so. The appellant did not identify any of the four affidavits as new information which he contended the Authority should get, request or consider.
Consideration
The power contained in s 473DC is a discretionary power that must be exercised reasonably: see Minister for Immigration and Border Protection v CRY16 and Anor (2018) 253 FCR 475 at [66]-[72] per Robertson, Murphy and Kerr JJ; and Minister for Immigration and Border Protection v DZU16 and Anor (2018) 253 FCR 526 at [79]-[81] per Robertson, Murphy and Kerr JJ.
The issue that the Court must assess is whether the decision of the Authority was legally unreasonable in the sense contemplated by the High Court in Li. This is not assessed through the lens of procedural fairness, although procedural fairness can be considered insofar as it is relevant to an assessment of reasonableness: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (“BVD17”).
In making this assessment the statutory context of Pt 7AA must be considered. Pt 7AA establishes a “fast track” review scheme where, unless specific exceptions are met, the Authority will make its decision on the basis of the same information that was before the Delegate: BVZ16 v Minister for Immigration and Border Protection and Anor (2017) 254 FCR 221 at [42] per White J.
The primary judge addressed ground 2 of the appellant’s application for review at [17] in his reasons where he said:
The Authority expressly referred to having considered whether to exercise its discretion under s 473DC of the Act to obtain new information about the applicant’s ties to Syria and Jordan but, given its finding that the applicant had not been truthful in the past and given the previous opportunities that the applicant has already had to make his claims about his nationality, the Authority did not consider that the Authority would obtain any useful or new information from that process and decided not to exercise that discretion. The Authority’s refusal to exercise the discretion in these circumstances cannot be said to lack an evident and intelligible justification and it was a reasonable exercise of the power under s 473DC(3) of the Act.
His Honour went on to say at [52]:
In relation to ground 2, the applicant’s reference to four affidavits being new information was not information that was before the reconstituted Authority. Those affidavits were apparently affidavits that were identified in the earlier Federal Circuit Court of Australia proceedings and were not before the Authority. Information that was not before the Authority is not capable of giving rise to any jurisdictional error. For the reasons already given, the Authority provided an evident and intelligible justification for declining to exercise the powers under s 473DC of the Act. No jurisdictional error is made out by ground 2.
It is difficult to see how the Authority could be said to have acted unreasonably by failing to get the four affidavits when the appellant did not draw the Authority’s attention to them, request the Authority get them or explain what significance (if any) they had to his application beyond what was already before the Authority. In my view, lacking any such explanation the decision by the Authority not to exercise its discretion under s 473DC to obtain further information was not legally unreasonable.
In the result, the primary judge was correct to hold that the Authority’s exercise of discretion under s 473DC was not subject to jurisdictional error.
ADDITIONAL ERRORS
The appellant made further submissions addressing additional errors made by the Authority or the primary judge. To the extent that these are viewed as new grounds of appeal, leave to rely on the new grounds will be refused. To the extent that these can be viewed as submissions supporting the appellant’s first ground of appeal, I do not accept the appellant’s submissions.
The appellant submitted that he was not afforded procedural fairness by the Authority when he was not provided the AUSTRAC reports. The first respondent submitted that the appellant was on notice as to the content of those reports from the SHEV interview and that, in any event, the appellant had access to those documents by the time of the relevant decision as they had been provided to the FCC (and the appellant) during the 2019 proceeding.
The Minister’s submission that the appellant had access to the AUSTRAC reports by the time of the relevant decision must be accepted. It is apparent from Judge Baird’s reasons at [49] that the appellant had been provided the AUSTRAC reports during the course of the 2019 proceeding. There can be no unfairness to the appellant by not providing him with documents that he had access to. The appellant’s argument is therefore without merit, and leave to raise this ground will be refused.
The appellant also submitted that the primary judge erred in finding at [23] that he had confirmed in his SHEV interview that the Facebook account was his. His Honour said at [21]-[23] that:
[21]The Authority referred to the Safe Haven Enterprise visa interview with the Delegate where it was raised with the applicant Facebook information which may indicate that the applicant has three sons that are alive and living and studying in Norway and that it would appear there had not been any rocket attack as claimed. The applicant confirmed that his mobile number was the same number linked to the Facebook account with a name similar to his own. The applicant also confirmed that he had a Facebook account and did not deny that it was his Facebook account when the Delegate told him of the name of the account. The Authority took into account that the applicant did not submit any evidence to contradict the Delegate’s findings about the Facebook account being his.
[22]The Authority also referred to the Delegate showing the applicant photographs of people who are friends on the Facebook account who had received remittances from the applicant since he had been in Australia and that the applicant appeared to have interacted with these people on Facebook, which suggested that they were known to him. The Authority referred to the applicant’s response that something was wrong and it was not his account, even though it was linked to his name and his phone number. The Authority identified that the applicant was shown details of photographs and that the applicant said he did not recognise the names and that his surname was different. The applicant suggested that his account may have been hacked.
[23]The Authority referred to the post-interview submissions and identified that it was incorrect that the applicant did not have raised the issue of whether he was known by the name on the Facebook account and that it was apparent that the Authority member referred at 45 minutes of the interview to the applicant being asked the name on the account and the applicant confirming that it was his account. The Authority found that the Facebook account belongs to the applicant.
The first respondent submitted that the primary judge’s reasons should not be read as narrowly as the appellant was suggesting and that in the context of the earlier discussion the primary judge’s “summary is an … accurate summary of both the IAA’s reasons and the conduct of the interview”.
Viewed as a whole, I do not think this section of the primary judge’s reasons indicates an error in his Honour’s approach to the evidence. Having considered the transcript of the interview, it is apparent that the appellant did not immediately deny the Facebook account was his and only later in the interview claimed the account was not his, that “something [was] wrong” and that his account had been hacked. While the primary judge’s second last sentence in [23] fails to capture this nuance, the paragraph read as a whole and in light of his earlier reasons does not disclose error.
In the documents contained in “The Appellate Argument” the appellant appears to make a submission that the primary judge’s decision was affected by bias. In oral submissions the appellant did not directly refer to this ground of appeal, however he did make submissions concerning the speed at which the primary judge made his decision, and submitted that that some of his written submissions produced after the hearing (in accordance with the primary judge’s directions) were not considered. There is nothing apparent from the primary judge’s reasons that indicates that the primary judge did not engage actively with the appellant’s grounds of review. Further, as I have discussed previously, the primary judge’s reasons clearly indicate that his Honour considered the submissions contained in the appellant’s affidavit filed on 20 July 2020 at [46] of his reasons. In my view, this ground of appeal is without merit, and leave to raise it will be refused.
DISPOSITION
The appellant has failed to establish that the FCC erred in relation to ground 1 or 2 in his notice of appeal. The appellant has also failed to establish that any of his additional proposed grounds of appeal have merit and leave to raise them will be refused. The appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal.
Orders accordingly.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 15 April 2021
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