EMU18 v Minister for Immigration
[2019] FCCA 3171
•6 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EMU18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3171 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa – decision of the Immigration Assessment Authority – whether the IAA erred in failing to consider a claim – whether the IAA erred in overlooking evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Pt.7AA, ss.5AAA, 36, 46A, 473DB, 473DC, 473DD, 473EA, 476 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| Applicant: | EMU18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 458 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 October 2019 |
| Date of Last Submission: | 29 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 6 November 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 458 of 2018
| EMU18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 27 July 2018. The IAA’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa (the “visa”).
The applicant filed an application in this Court on 30 August 2018. That application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it the applicant’s application for judicial review, an affidavit from the applicant affirmed 29 August 2019, a 143 page Court Book (which the Court marked as Exhibit 1) and a written outline of submissions from the Minister dated 1 October 2019.
The hearing of this matter took place on 31 October 2019. The applicant appeared in person. He was not legally represented. He was, however, assisted by a Tamil interpreter. The Court thanks the interpreter for his considerable assistance.
At the commencement of the hearing on 31 October 2019, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s outline of submissions.
Background
The Court has read and reviewed the Court Book (hereafter, the “CB”) in preparing these reasons for judgment. The Minister’s submissions (at [3]-[7]) accurately summarise the background to this matter. The Court adopts that summary. With minor additions, it provides as follows.
The applicant, a citizen of Sri Lanka, arrived in Australia on 6 July 2013 as an unlawful maritime arrival (CB 96). On 19 July 2016, the Minister’s department notified the applicant that the Minister had lifted the bar pursuant to s.46A of the Act and invited him to apply for the visa (CB 19-20). On 29 September 2017, following several reminder notices (CB 21-26), the applicant applied for the visa (CB 27-33). He did so with the assistance of a migration agent (CB 41 and 57-60).
The applicant’s claims are contained in a statutory declaration which accompanied the visa application (CB 61-65). They were also articulated in his interview before the delegate. The IAA accurately summarised these claims at [3] as follows:
• He was born on [omitted] in Kilinochchi. He is a Tamil and Hindu. His parents were separated when he was young. His mother has been raising 5 children, including the applicant and his four sisters on her own.
• His family were displaced to several places due to the war, including spending some time in Vavuniya Detention Centre in 2009 before returning to Kilinochchi in 2010.
• His mother has a restaurant situated opposite an orphanage house which was occupied by the Criminal Investigations Division (CID) officers and the Sri Lankan Army. Her sister “A” was constantly harassed and bullied by the CID and army officers who would frequent the restaurant.
• In 2013 his sister escaped an attempted rape. Then one of the officers approached his mother and requested his sister attend the camp. His mother did not follow up the request knowing his sister would be tortured, raped and kidnapped.
• In 2013 the applicant was constantly harassed on his way to school as officers asked him about his sister. He was taken to the camp one day and was beaten and had a gun pointed at him. He was questioned about her sister’s whereabouts and demanding his sister see them. He was only released after his mother had been crying outside the camp.
• The day after his arrest, the officers came to his house and said that they had photos of his sister participating in LTTE programmes and performances. They threatened to charge his sister and kill him.
• The applicant left Sri Lanka with his sister by air to Singapore, then to Indonesia before arriving at Australia by boat.
• Since they left, the CID officers have gone to his mother’s restaurant/house looking for him and his sister.
• He fears harm from the authorities as well as the rogue CID officers who detained and abused him.
• His sister has since married in Australia and has a son born in 2015 in Australia.
• The applicant married an Australian citizen on 24 February 2018. It is a love marriage. If the applicant were forced to return, it will cause serious and irreparable harm to his wife and it is not practicable for his wife to return with him as his safety upon return remains uncertain.
On 15 May 2018, the applicant attended an interview with the delegate. Following the visa interview, on 30 May 2018, the applicant’s representative provided written submissions to the delegate (CB 78-84), and photographs from his wedding (CB 85-92).
On 14 June 2018, the delegate refused to grant the visa (CB 96-114).
On 20 June 2018, the matter was referred to the IAA (CB 115-116).
On 9 July 2018, the applicant telephoned and emailed the IAA and sought an extension of time of 15 days in which to provide new information (CB 119-120). Later on 9 July 2018, the IAA refused the request as it was not satisfied that the circumstances warranted extending time in this case. It noted that if it received new information after the 21 day limit, but before a decision was made, a determination would be made as to whether to accept it (CB 121).
On 27 July 2018, the IAA affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 124-136).
IAA’s Decision
The IAA’s decision is 13 pages long and spans 39 paragraphs. Four pages detail the legislative provisions relevant to the visa the applicant seeks. The IAA accurately summarises those provisions and the core principles that apply to them at [14]-[15] (in relation to the refugee criterion) and [33]-[34] (in relation to the complementary protection regime).
The Minister’s submissions (at [8]-[17]) accurately summarise relevant parts of the IAA’s decision. The Court adopts that summary as its own. With some additions and amendments as detailed below, that summary provides as follows.
The IAA had regard to the material referred to it by the Secretary in accordance with s.473CB of the Act (CB 125 at [2]). It noted that no further information had been received from the applicant.
At [3]-[5], the IAA summarised the applicant’s claims, noting that the claims centrally concerned his sister, and accepted that Sri Lanka was the applicant’s home country.
Whilst the IAA had regard to country information to the effect that sexual violence against women occurred in Sri Lanka, and that female headed households face challenges in the north and east, the IAA was not satisfied, on the applicant’s vague evidence, that his sister was the subject of an attempted rape (CB 126 at [6]). The IAA considered the applicant’s belief that his sister was subject to an attempted rape to be speculative.
The IAA considered the applicant’s evidence in relation to his claimed arrest, detention and abuse in custody to be inconsistent, and noted that the inconsistencies cast serious doubt on the veracity of the claim (CB 126-127 at [7]). Although the applicant had claimed that he was targeted because he was the only male figure in the family, the IAA considered that this did not explain why he was released on the same day of the claimed incident. It was not satisfied that the applicant was taken, detained and beaten as claimed (CB 127 at [9]).
Whilst the IAA considered that it was plausible that the applicant’s sister may have participated in some Liberation Tigers of Tamil Eelam (the “LTTE”) programmes and performances while living in an LTTE controlled area, it did not consider that she was harassed because of this (CB 127 at [9]). It considered that if the authorities were interested in his sister for any LTTE related activities, they would have had ample opportunity to detain her given that both the family home and restaurant were close to the Criminal Investigation Department (the “CID”) and Sri Lankan Army (the “SLA”) camps (CB 127 at [9]). The IAA did not consider it plausible that the officers would have detained the applicant because they could not find his sister. The IAA was not satisfied that the applicant’s sister was asked to report to the camp or was sought out by the CID or SLA officers, or that she was of any adverse interest to them because she performed or acted in movies and programmes for the LTTE. The IAA did not accept that the applicant was constantly harassed because of his sister.
The IAA was also not satisfied that the applicant’s uncle was involved in the LTTE or suspected of such links (CB 127 at [10]).
Further, the IAA did not consider it plausible that officers would have approached the applicant’s mother over 20 times looking for him and his sister (CB 127-128 at [11]). The IAA determined that, given that they both departed legally through the airport, if the authorities were looking for him, they would have been able to easily ascertain that he had left the country. Further, as the applicant and his sister (who, the IAA accepted, was the subject of unwanted attention and low-level harassment as a young single female) departed Sri Lanka without difficulty, the IAA was not satisfied they were of interest to the authorities or that enquiries were made of them (at [12]).
The IAA was not satisfied that there was a real chance that the applicant would be harmed by officers if he returned to Sri Lanka (CB 128 at [16]). The IAA was also not satisfied that the applicant would face a real chance of harm as the only male figure in his family if he returned to Sri Lanka (CB 129 at [17]).
At [18]-[26], the IAA summarised the country information it had before it. That country information was sourced from the Department of Foreign Affairs and Trade Country Information Report and the United Kingdom Home Office.
The IAA recorded that the applicant had had no involvement in the LTTE and was not a member or supporter of the LTTE (CB 131 at [27]). Whilst the IAA accepted that the applicant’s sister may have performed for the LTTE, it found that she was not of adverse interest to the Sri Lankan authorities because of this, and that neither she nor her family, including the applicant, had experienced any difficulties as a result (CB 131 at [27]). Noting that the war had ended nine years ago, the IAA found that there was no credible information to suggest that Sri Lankan authorities would impute the applicant with a pro-LTTE profile because of his sister’s past performances.
Having regard to the country information, the IAA was not satisfied that the applicant faced harm as a young Tamil male from an LTTE controlled area in the Northern Province and as a returning asylum seeker who had spent a number of years in Australia (CB 131 at [29]).
The IAA accepted that the applicant was married to an Australian citizen on 24 February 2018 (CB 128 at [13]). However, it found that the applicant did not face a real chance of harm due to his marriage to his Australian wife (CB 131 at [30]).
Accordingly, the IAA was not satisfied that the applicant met s.36(2)(a) of the Act (CB 131 at [32]). Having regard to its anterior factual findings, it was also not satisfied that the applicant met s.36(2)(aa) (CB 132 at [35]-[39]).
Proceedings on this Court
The application for judicial review contains a single ground as follows:
1. The IAA has failed to consider all pertinent evidence provided in reaching its decision (see affidavit attached).
The affidavit referred to above contains 15 paragraphs, as follows:
1. I was born on [omitted] in Kilinochchi. I am a Tamil and Hindu. My parents were separated when I was young. My mother has been raising 5 children, including me and my four sisters on her own.
2. My family were displaced to several places due to the war, including spending some time in Vavuniya Detention Centre in 2009 before returning to Kilinochchi in 2010.
3. My mother has a restaurant situated opposite an orphanage house which was occupied by the Criminal Investigations Division (CID) officers and the Sri Lankan Army. Her sister “A” was constantly harassed and bullied by the CID and army officers who would frequent the restaurant.
4. In 2013 my sister escaped an attempted rape. Then one of the officers approached my mother and requested my sister to attend the camp. My mother did not follow up the request knowing my sister would be tortured, raped and kidnapped.
5. In 2013 I was constantly harassed on my way to school as officers asked me about my sister. I was taken to the camp one day and was beaten and had a gun pointed at me. I was questioned about my sister’s whereabouts and demanding my sister see them. I was only released after my mother had been crying outside the camp.
6. The day after my arrest, the officers came to my house and said that they had photos of my sister participating in LTTE programmes and performances. They threatened to charge my sister and kill him.
7. I left Sri Lanka with my sister by air to Singapore, then to Indonesia before arriving at Australia by boat on 3 July 2013.
8. Since I left, the CID officers have gone to my mother’s restaurant/house looking for me and my sister.
9. I fear harm from the authorities as well as the rogue CID officers who detained and abused me.
10. I lodged an application for a Safe Haven Enterprise Visa (SHEV), Subclass 790 on 29 September 2017. A delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa on 14 June 2018. The delegate found that the applicant did not have a well-founded fear of persecution and there was not a real risk of significant harm upon his return to Sri Lanka.
11. On 27 July 2018 the IAA affirmed the decision of the department (see Annexure A and B)
12. It is claimed that the IAA did not make a decision in full consideration of the facts and evidence.
13. For this reason, it is claimed the IAA has made a ‘jurisdictional error’ in deciding to affirm the refusal of my visa by the department.
14. I intend to produce further evidence at the hearing to substantiate my claims in (13) above.
15. It is therefore requested the Court make order as requested in the application to which this affidavit is an attachment.
On 10 October 2018, a Registrar of this Court made orders allowing the applicant to file any amended application, affidavit evidence and an outline of submissions. No materials were filed by the applicant notwithstanding the statement in [14] of the affidavit referenced above. The applicant also confirmed at the hearing that he had no further materials to provide.
Noting the remarks of the Federal Court (in particular, in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for a party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that the Court’s role on judicial review was limited to determining whether the IAA had engaged in jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa the applicant now seeks. Rather, the Court can only undertake an analysis of whether the IAA “made mistakes” of the sort outlined above.
Unfortunately, most of the applicant’s submissions at hearing were directed to the merits of the IAA’s decision and his disagreement with the findings made. The applicant stressed that the situation in Sri Lanka had not changed and that the things he feared would happen to him would still happen.
Disagreement with the IAA’s decision does not amount to jurisdictional error. To the extent the applicant’s oral submissions can be taken to suggest the IAA did not properly consider certain matters, the Court will address this issue below.
Consideration
Ground 1 is, arguably, particularised by the applicant’s affidavit and the Court will consider it accordingly.
In relation to paragraphs 1-11 in the affidavit, these paragraphs outline factual matters. Many of these matters are not contested. To the extent that the applicant is restating his claims for protection this is not relevant to the Court’s task. The Court is not concerned with the merits of the applicant’s claims for protection. It is concerned solely with whether the IAA “erred”.
Paragraph 12 emphasises the applicant’s main argument:
12. It is claimed that the IAA did not make a decision in full consideration of the facts and evidence.
Paragraph 13 refers to paragraph 12 as being the “jurisdictional error”. Hence, [13] is not itself a ground of review. Further, [14] is also not a ground of review. It is an assertion that has proved to be untrue as the applicant has not provided further evidence. As for [15], this is merely the applicant pleading for relief in the form of constitutional writs. It is also not a ground of review.
Reading the sole ground of review with [12] of the applicant’s affidavit, it appears that the applicant is alleging that the IAA failed to consider a relevant consideration or, more particularly, failed to actively consider and engage with the evidence and claims.
The Minister submits at [21] and [22] in written submissions as follows:
21There was very limited information provided by the applicant to the delegate, and the Authority did not receive any new information from the applicant.
22The Authority considered all of the evidence before it, being: the applicant’s identity documents (CB 126, [4]); the post-SHEV interview submissions provided by the applicant’s representative (CB 131, [30]); and whilst it did not expressly refer to the photographs of the applicant’s marriage, it accepted that he was married to an Australian citizen on 24 February 2018 (CB 128, [13]). The failure to expressly refer to the photographs of the applicant’s wedding did not amount to a jurisdictional error, in circumstances where such evidence was not critical to the process of decision- making (referencing Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; Minister for Immigration v SZRKT (2013) 212 FCR 99; Minister for Immigration v MZYTS (2013) 136 ALD 547).
The Court agrees.
It is noted that the “claims” of an applicant are a mandatory relevant consideration and a failure to consider any “claim” (here “facts” that the applicant has presented) may amount to jurisdictional error. On the other hand, a failure to refer to a piece of evidence will not normally amount to jurisdictional error. There is no requirement for the IAA to refer to every piece of evidence, only those upon which findings of fact are based: the Act, s.473EA.
The “facts and evidence” that the applicant presented in support of his visa application included:
a)a statutory declaration dated 20 September 2019 which set out the applicant’s claims (CB 61-65);
b)matters discussed at the interview with the delegate on 15 May 2018; and
c)a submission from the applicant’s migration agent (CB 78-84) which included photographs from the applicant’s wedding to his Australian wife.
The IAA made various express references to the “facts and evidence” that were provided. The IAA summarised the matters outlined in the statutory declaration (see for example [3], [7], [8] and [11]). The IAA also made various references to what the applicant had stated in his interview with the delegate (see for example [5]-[8] and [10]-[11]). The IAA also referred to the post-interview submission (see [30]). It can be implied from [25] that when the IAA states it has noted the “reports/articles that some Tamils are arrested on return” the IAA is also referring to the post-interview submissions.
It is true that the IAA did not explicitly refer to the photographs of the marriage. Whether there was a need to do so when the photographs formed part of the submission and the IAA expressly refers to the post-interview submission does not need to be resolved. The Court does, however, note that the context in which the “post-interview” submission was expressly referred to was in relation to the applicant’s marriage. Hence, the Court can reasonably infer that that reference included the photographs.
In any event, the fact that the IAA did not explicitly refer to the photographs is not material as the claim to which the photographs related was accepted. The photographs were included for the purpose of establishing that the applicant had married an Australian citizen and that the relationship was genuine. The IAA accepted the applicant had married (see [13]) and the IAA, assuming the marriage to be genuine, determined that the applicant did not face a real chance of serious harm due to his marriage to his wife, nor a real risk of significant harm ([30] and [37]). Hence, the factual basis the photographs were provided to establish was accepted. However, the factual basis (i.e. the marriage) did not meet the criterion.
Before this Court, the applicant stated that the IAA failed to consider a claim concerning his uncle – namely, that the applicant’s uncle had disappeared and, although not sure know why, he thought it may have been because he was accused of being involved in the LTTE.
The delegate’s decision makes the following remarks in relation to this issue (CB 100):
At the SHEV interview the applicant was further questioned whether any other members of his family were supporters or members of the LTTE to which he responded ‘no’. Whilst he acknowledged an uncle of his went missing whilst working in Colombo in 2009, he stated he was not aware of any associated LTTE profile. I accept the applicant’s submission that his family were not members of the LTTE or held positions of significance.
At [10], the IAA stated:
At the SHEV interview, the applicant was further asked if any other members of his family were supporters or members of the LTTE. He stated that his uncle who was also from Kilinochchi was working in Colombo and arrested by the army and then went missing in 2009. He stated that he was not sure if he was in the LTTE or not but believed that he was accused of being involved in the LTTE. The applicant does not claim that his family faced any difficulty because of his uncle. I am not satisfied that his uncle was involved in the LTTE or suspected of such.
The applicant’s evidence concerning his uncle was considered by the IAA. The basis for the IAA’s “non-satisfaction” was:
a)the applicant raised the evidence concerning his uncle in response to a question by the delegate;
b)the applicant was not sure whether his uncle was in the LTTE but believed that he was accused of being in the LTTE; and
c)the applicant provided no evidence to suggest he had any trouble after the disappearance of his uncle.
The evidence was, with respect, insufficient for the IAA to be satisfied that the applicant’s uncle was involved in or suspected of working in the LTTE. In the circumstances of this case as advanced, there was nothing illogical in the IAA stating that it was not satisfied the applicant’s uncle was involved with the LTTE when the applicant himself was only speculating. The IAA considered the limited and vague evidence before it and, to the extent that it amounted to a “claim” to fear harm, the evidence was rejected.
When making its’ “factual findings”, the IAA referred to the evidence it relied upon. That is all it was required to do. The Court is satisfied that the evidence (and the reasoning that flows from an assessment of the evidence) provide a logical and reasoned basis for the conclusions drawn. Further, when making findings in relation to the chance and risk of harm, the IAA relied upon the factual findings it had made, other evidence that the applicant had proffered and the country information to, again, come to conclusions that were open to it.
Having reviewed the materials the applicant provided in support of his application for judicial review, the Court is satisfied that the IAA gave “full consideration to the facts and evidence”. The IAA considered the facts and evidence, engaged with the facts and made findings based on the facts and evidence that were open to it.
The sole ground of the application, and the matters referred to in the applicant’s affidavit, fail to identify any jurisdictional error.
Otherwise
The Court is mindful of the comments of Mortimer J in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [100] and [112] that in circumstances akin to those here (where an applicant is unrepresented and does not speak English), the Court should be astute to the possibility of legal error in the IAA’s decision.
It is noted that on 9 July 2019, the applicant requested an extension of time in which to provide new information to the IAA (CB 120). The information the applicant wished to provide to the IAA was a letter he had asked his mother to obtain which he believed would support his claims (CB 119).
The IAA refused this request on the same day (9 July 2019) (CB 121). In that respect the correspondence sent to the applicant reads:
I refer to your correspondence of 9 July 2018 requesting additional time to provide new information. Your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. As the case was referred on 20 June 2018, this 21 day period ends on 11 July 2018 and the IAA is not satisfied that the circumstances warrant extending the time in this case.
The IAA is not required to accept new information received after that date. If you provide new information after that date but before a decision is made, a determination will be made as to whether it will be accepted.
No further information was provided by the applicant.
On its face, the Court considered whether the IAA’s refusal here could amount to a failure to afford procedural fairness or might amount to jurisdictional error on the basis of unreasonableness.
The Court notes that in BUU18 v Minister for Home Affairs [2019] FCA 457 at [22] (“BUU18”), an applicant was refused an extension time to provide a submission which Justice Kerr noted may well have included new information (although the Court acknowledges that a submission does differ from “new information” the latter of which is what the applicant suggested he would provide here).
The reasons for the rejection in BUU18 were in terms almost identical to those seen here. Justice Kerr raised some concern with the application of procedural fairness obligations and legal unreasonableness in this context, noting at [21]-[22]:
21. Where Pt 7AA contains no provisions dealing with ability of an applicant to make a submission (contra ss 423 and 425 of the Act for reviews conducted under Pt 7 of the Act) and s 473DA makes the regime an exhaustive statement of what procedural fairness requires, I entertain considerable doubt as to whether the Practice Direction can add to the procedures contained in Pt 7AA itself…
22. Assuming that an assumption in a clause in a practice direction can be a source of statutory authority, I do not think it can be said that the refusal in this case was unreasonable or irrational in the relevant sense. One can imagine perfectly sensible reasons why a decision maker in the position of the Authority might have refused to extend the time. Consequently, one cannot say that the decision to do so is unreasonable on its face. Nor can I discern in the refusal some process of reasoning which defies comprehension.
The refusal of an extension here is in almost identical terms. As such, the Court adopts the reasoning provided by Justice Kerr in BUU18.
The Court notes further that it is not satisfied that there was a denial of procedural fairness or any unreasonableness in failing to extend the time to provide information on the facts of this case. Here:
a)in terms of procedural fairness, the statutory context in which the IAA operates allows the IAA to make a decision “at any time after the decision has been referred” to the IAA: the Act, s.473DB(2). Hence, while the practice direction provides a time limit, given that one of the “exhaustive statements” of procedural fairness enables the IAA to make a decision at “any time”, the failure to provide an extension arguably does not amount to a denial of procedural fairness;
b)while the IAA may ‘accept’ new information, there is no duty to do so and the “new information” must satisfy the requirements of s.473DD. Here, the applicant’s request was generic. It gave no indication of what the information would specifically pertain to. It broadly stated that it would “support” his claims;
c)it cannot be said to have been unreasonable not to seek further information about the alleged “new information” under s.473DC when one also takes into account the scheme of pt.7AA and s.5AAA of the Act; and
d)in any event, the applicant was at liberty to provide the new information at any time before the IAA made the decision and, notably, the IAA did not make the decision until after the 15 day period the applicant requested had passed. The applicant had an opportunity to provide the information he wished to provide and it cannot be said he was misled into not providing it.
The Court has otherwise analysed the IAA’s decision and is not satisfied any error arises.
Conclusion
The Court is not satisfied any error arises in the IAA’s decision as the applicant has alleged or on the face of the decision itself.
The application must be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 November 2019
0
16
2