ENK18 v Minister for Home Affairs
[2019] FCCA 3190
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3190 |
| Catchwords: MIGRATION – Protection (Class XE) visa – decision of the Immigration Assessment Authority – whether the IAA properly considered claims – whether the IAA was required to give the applicant an opportunity to comment on claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 473CA, 473DB, 473DC, 473DE, 476 |
| Cases cited: ALR17 v Minister for Home Affairs [2019] FCAFC 182 |
| Applicant: | ENK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 460 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Counsel for the First Respondent: | Mr M. Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 460 of 2018
| ENK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 31 August 2018 the applicant filed a judicial review application in this Court seeking review of a decision of the Immigration Assessment Authority (the “IAA”) dated 20 August 2018.
The IAA’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant bears the onus of establishing that the IAA has fallen into jurisdictional error.
The Court had before it an 876 page Court Book (“CB”) (marked as Exhibit 1), the applicant’s judicial review application and a set of written submissions filed by the Minister on 11 October 2019.
The applicant appeared before the Court without legal representation. He was assisted by a Hazaraghi interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. He indicated he had done so and he had a copy with him during the hearing.
Background
The factual background relevant to this matter can be summarised as follows.
The applicant is a citizen of Afghanistan. He arrived in Australia on 20 April 2013 as an ‘unauthorised maritime arrival’ (CB 1 and 52).
On 11 May 2016, the Minister lifted the bar pursuant to s.46A bar. The applicant was invited to make an application for the visa (CB 26-27).
On 9 February 2017, the applicant applied for the visa. He was assisted by a migration agent.
The applicant’s claims were accurately summarised by the IAA at [7] of its decision as follows:
• He is a Hazara Shia citizen of Afghanistan born in Olyad village, Pashi area, Malestan district, Ghazni province, Afghanistan in 1992. In 2000 his family moved to Pashtun Abad and then to Tohweenabad, both in or close to Ghazni City.
• There is no security in Afghanistan, especially for Hazaras. There is violence against Hazaras and it was his personal experience of this which led him to flee Afghanistan:
- About one year before he left, his father and brother were killed by a road side mine while travelling from Ghazni to Kabul. His brother, A, survived but he was injured and remains disabled.
- His Hazara friend who served in the army was killed by the Taliban.
- Another friend was kidnapped by the Taliban close to the applicant’s family home. A delegation of village elders negotiated his release.
- He himself escaped from a Taliban kidnapping in 2012. He had been traveling home on school holidays from Kabul to Pashtun Abad, Ghazni City in a private taxi when stopped and searched by the Taliban in Shashgaw. They found his Taskera, school books and a photocopy of his school ID. They confiscated his documents and let everyone go except him and one other man. They took him to a house and questioned him before moving him to another location where they punished, tortured and beat him for two days. They accused him of lying about being from Ghazni because his Taskera states he is from Malestan. They kept asking if he knew certain people from Olyad Pashi village and he said no. They questioned him about university and accused him of lying about working for the government. After two days he escaped through an opening or hatch up high on the walls. He ran to the main road and eventually managed to flag down a car which took him to Ghazni. He did not report his kidnapping to the police as he was scared the Taliban would find out and this would put his family at greater risk. This event made him decide to leave Afghanistan.
• He fears being harmed (abducted/tortured/killed) by the Taliban, Daesh or other anti- Shia/Hazara groups because he is a Hazara Shia former university student associated with Olyad Pashi village who escaped from the Taliban before and lived in a western country.
• He is unable to rely on the Afghan government for protection; they do not have control of the country. Even people he knows who have worked for the government have received threat letters.
• There is nowhere in Afghanistan he would be safe.
• He continues to suffer from the torture and trauma of the kidnapping. He has suffered nightmares in Australia and he feels that he has forgotten everything he has learned in the past. His specific circumstances and vulnerabilities should be taken into account when assessing his evidence.
The applicant attended an interview with the delegate on 21 September 2017. Prior to that interview the applicant sent a statement to the delegate. The applicant’s representative also provided extensive written submissions (including country information reports) to the delegate following the interview (CB 123-781).
The delegate refused the visa on 22 November 2017 (CB 787-821). The delegate was not satisfied as to the applicant’s identity but nevertheless proceeded to consider the applicant’s claims for protection. Ultimately, the delegate’s finding was that the applicant did not face a real chance of persecution or a real risk of significant harm in Mazar-e-Sharif and that relocation to that city would be reasonable in the circumstances.
The matter was then referred to the IAA in accordance with s.473CA of the Act on 27 November 2017 (CB 823).
On 18 December 2017, a newly appointed migration agent provided the IAA with written submissions.
On 20 August 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa.
IAA’s Decision
The IAA’s decision is 18 pages long and spans 56 paragraphs. Four of those pages consist of extracts of the applicable legislative provisions. At [18]-[19] and [49]-[50], the IAA accurately summarises those provisions.
The Minister’s outline of submissions (at [10]-[28]) accurately summarise the IAA’s decision and does so in considerable detail. The Court adopts the summary provided as its own. It provides as follows.
The IAA had regard to a submission received from the applicant’s representative on 18 December 2017. To the extent that the information reiterated information already before the delegate and contained arguments addressing the delegate’s findings, the IAA was satisfied that it was not new information and had regard to it (CB 854 at [4]).
The IAA also considered that the submission contained ‘new information’, being country information from the Afghan Analysts Network (AAN) and Human Rights Watch. The IAA was satisfied that there were exceptional circumstances to justify taking the information into account (CB 854 at [5]).
The IAA also obtained new information itself about the situation in Afghanistan for Shia Muslims, Hazaras and returnees including those in Ghazni. The IAA was satisfied that there were exceptional circumstances which justified taking the information into account, given the fluidity of the situation in Afghanistan (CB 854 at [6]).
Despite some discrepancies in the applicant’s claimed identity and background details, the IAA accepted as accurate the applicant’s identity and receiving country (CB 856 at [9]).
The IAA accepted that the applicant was born in the Malestan district in 1992 or 1993 (CB 856 at [10]).
The IAA found that the applicant’s links were strongest to the Pashtun, Abad or Tohweenabad area in the Ghazni City region and that this was the area to which he would return (CB 856 at [12]).
The IAA accepted that the applicant had experienced trauma in Afghanistan, that his father and a brother were killed and that another brother was rendered disabled by a road mine explosion while travelling between Ghazni and Kabul (CB 857 at [13]).
The IAA accepted that the applicant was stopped in 2012 while travelling home from university in Kabul and was detained, questioned and beaten for two days by the Taliban. The IAA accepted that the applicant was beaten, kicked, punched and hit with a gun while detained (CB 857 at [14]).
Despite noting some concerns as to the plausibility of the applicant’s explanation about how he escaped the Taliban, the IAA accepted that the applicant managed to escape and stayed in his family home for a few months before leaving Afghanistan (CB 857 at [14]-[15]).
The IAA noted that during this period of a few months, the evidence did not indicate that the Taliban were making any efforts to find the applicant (CB 857 at [15]).
The IAA accepted that the applicant knew two other people from his area that were targeted by the Taliban and that he knew government workers who had received threatening letters from the Taliban. The IAA did not accept, however, that these incidents impacted on the applicant’s profile or that they otherwise indicated a risk of harm to the applicant (CB 857 at [16]).
The IAA noted that the applicant’s immediate family have stayed in the Tohweenabad area since the kidnapping incident referred to above and that the applicant still has friends and contacts in that area and in Kabul. The IAA found that there was no evidence before it to suggest that the Taliban had tried to locate the applicant through his contacts or that any members of the applicant’s family have been harmed or threatened (CB 858 at [21]).
The IAA noted that around six years had passed since the kidnapping incident referred to above. The IAA was not satisfied that the Taliban or any other Anti-Government elements would have the motivation to track the applicant given that they had not made efforts to track the applicant in the few months between the kidnapping incident and when the applicant left Afghanistan. The IAA did not accept there is a real chance that the Taliban would seek to find and harm the applicant, or in the chance of any opportunistic or random interactions, that the applicant would be recognisable to them and would be harmed in such circumstances (CB 858-859 at [22]).
The IAA was not satisfied that the applicant would face a real chance of harm owing to his former university education or his association with a university in Kabul, nor for his association with Olyad Pashi or his imputed association with Shujoyi, nor because he was previously caught by them and escaped, or for any imputed pro-government profile arising from these factors (CB 859 at [22]).
The IAA found that the applicant was not personally of adverse interest to the Taliban, ISKP or any insurgents/extremists (CB 860 at [29]).
The IAA was not satisfied that the applicant faces a real chance of serious harm on the basis of his racial or religious profile (CB 860 at [31]).
The IAA was satisfied that any harm that the applicant may face in the form of generalised violence or criminality would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or for a political opinion and ss.5J(1)(a) and 5J(4)(a) of the Act were accordingly not satisfied (CB 864 at [46]).
The IAA accordingly found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and hence failed to meet s.36(2)(a) of the Act.
The IAA separately considered whether complementary protection ought to be offered. For similar reasons, the IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm (CB 865-866 at [49]-[56]).
Proceedings in the Court
The applicant’s judicial review application contains two grounds of review, as follows:
1. The Assessor failed to property consider all of my claims.
2. The Assessor didn’t give me a chance to comment on one aspect of my claims.
The Minister submits that these grounds are not properly particularised. The application is also formulaic. This is, unfortunately, a common occurrence where an applicant is unrepresented and speaks little or no English.
As is now the norm in this Court in relation to unrepresented applicants (particularly those seeking protection), the applicant was provided an opportunity to orally explain his grounds of review and to tell the Court what he thought the IAA “did wrong”: DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
It was explained to the applicant that the Court can only look at whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include 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 the entirety of an applicant’s claims (or “integers “ of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111];
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 it cannot engage in a “merits review” of the IAA’s decision and explained to the applicant what “merits review” means: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It was stressed that the Court cannot give him the visa he seeks or allow him to remain in Australia. Rather, the Court’s review is limited to the identification of a material error of a kind referred to above.
Against this background, the applicant made a number of submissions. He asserted that he did not know whether the IAA made a mistake, but thought it was wrong that the IAA found that he could return safely. The applicant also submitted that the IAA did not acknowledge the danger he was in “seriously or deeply enough”.
The Court will consider these submissions in addressing ground 1 below.
Consideration
Ground 1
1. The Assessor failed to properly consider all of my claims.
The Minister submits that the reference to the IAA not “properly” considering the claims suggests an invitation for impermissible merits review. That may well be the case. However, the reference to the IAA failing to “properly” consider the claims can also be read as an assertion that the IAA failed to giver proper, genuine and realistic considerations to all of the applicant’s claims: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
At hearing the applicant stated that the IAA did not take into account his personal security needs.
The IAA set out the applicant’s claim at [7] of its decision (extracted above). The Court notes that the submissions provided by the applicant’s migration agent did contain a claim on the basis of the general security situation in Afghanistan. While the IAA does not refer to this in the summary of claims, the IAA does in fact address this at [44]-[45] and again at [54]. It cannot be said the IAA did not consider the applicant’s personal security.
To the extent the applicant’s submissions argued with the contents and use of the country information, it is well accepted that the choice, selection and application of country information is a matter for the IAA as a part of its fact finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
The Court has otherwise reviewed the materials in the Court Book to determine first, if any claim was overlooked and second, if the claims were properly addressed by the IAA.
The IAA accepted the applicant’s claims to have been kidnapped in 2012, that the applicant knew people who were targeted by the Taliban and that his father and one of his brothers were killed while travelling (CB [13]- [17]). Against the background of those factual findings, the IAA turned to consider the applicant’s chance of harm.
The Court notes that at [47], in concluding, the IAA states:
47. I accept the applicant may face some discrimination however I am not satisfied it would amount to or lead to serious harm. I have considered that the applicant has suffered previous harm in a Taliban abduction and would be would be returning to an area with a Taliban presence. However I am not satisfied that the evidence in the review material or the information given to the IAA suggests that the applicant would be of any adverse interest to the Taliban or to any insurgents and considering all the information before me, I find there is not a real chance of the applicant being harmed on the basis of his profile as a Hazara Shia former student who originates from Olyad Pashi, who escaped from the Taliban previously and went and sought asylum in and lived in Australia/the west. I also find there is no real chance of the applicant facing harm arising from his mental health, generalised violence or criminality in or returning to his home area.
The Court is satisfied that each of the applicant’s claims raised throughout the course of the visa application process was acknowledged by the IAA and the IAA considered those claims (and their relevant integers) against the visa criterion: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]. This is apparent from the comprehensive analysis provided by the IAA at [20]-[46] and [54]-[55].
In particular, the Court notes:
a)in the submissions the applicant’s migration agent sent on 18 December 2017, it was submitted that the delegate overlooked the applicants claim based on his place of origin, namely Olyad Pashi, and his being imputed to support Shujoyi. The IAA considered these claims (at [22] and [34]);
b)the IAA considered the applicant’s claims to fear harm from the Taliban, Daesh or other anti-Shia/Hazara groups on account of his origins from Olyad Pashi village (including an imputed association with Shujoyi), education background and because he had previously been abducted and escaped from the Taliban(at [21]-[22]);
c)the IAA comprehensively considered the applicant’s claim to fear harm from the Taliban, Daesh or other anti-Shia/Hazara groups on the basis of his being a Shia Hazara (at [23]-[29]);
d)the IAA turned to consider the applicant’s claims to fear harm (namely discrimination from the state or as a result of being in a minority) on the basis of his religion, ethnicity and origins from Olyad Pashi village at a societal level (at [32]-[34]);
e)the IAA acknowledged that the applicant “mention[ed]” having “psychological difficulties” and considered the chance and risk of harm to the extent it was able to on the limited information before it (at [35] and [53]);
f)the IAA extensively addressed the applicant’s claims relating to his being identified as a returning asylum seeker from the West, including the concerns of the applicant that he displays Western behaviours and has a social media page depicting photos of his time in Australia. The consideration of this claim included two alternative findings (at [37]-[43]); and
g)the IAA then considered the claim of harm on the basis of generalised violence and criminality (at [44]-[46] and [54]).
In the course of considering each of these claims the IAA referred to various country information sources and the applicant’s own circumstances and evidence. The IAA evaluated the country information against the applicant’s own evidence and particular circumstances (see [26]) and made well-reasoned and informed findings that were based on logical and probative grounds.
It is apparent from the discussion at [20]-[46] that the IAA properly considered the applicant’s claims. It engaged with them, and on many occasions analysed the country information and applied it to the particular circumstances and evidence that were proffered by the applicant to come to the conclusions it came to. Each finding was logical and based on probative evidence or material – namely, country information or the applicant’s own evidence (or lack thereof).
The IAA’s consideration of each of the applicant’s claims was sound and its reasoning and findings in relation to those claims was cogent and logical. The applicant’s submission that the IAA did not consider his claims “deeply enough” cannot be accepted.
Ground 1, accordingly, is dismissed.
Ground 2
2. The Assessor didn’t give me a chance to comment on one aspect of my claims.
Again, the applicant has not identified what aspect of his claims he is referring to.
Here, the Court must consider the statutory scheme in which the IAA operates. Namely, the IAA is not obliged to give the applicant an opportunity to comment on any aspect of its claims and, more specifically, the norm in reviews by the IAA is that the review is conducted without inviting an applicant to comment: the Act, s.473DB.
The applicant was on notice that he may not have another opportunity to comment on any aspect of his claims after the delegate had made their decision. The information the applicant was sent prior to the interview with the delegate stated as follows:
If you do not give the Department all of your protection claims, and any additional relevant information you may have, and your application is refused by the Department, you might not have another chance to provide these claims for the purpose of supporting your Protection visa application.
…
It is your responsibility to provide the particulars of your claims for protection and to provide sufficient evidence to establish those claims at the interview and before a decision is made.
…
… [i]f your application is refused based on your claims, it will be reviewed by the Immigration Assessment Authority (IAA). The IAA can only consider material that is provided to it by the Department, on referral of the decision (unless exceptional circumstances apply).
(CB 103-109)
Upon the matter being referred to the IAA, the applicant was sent a copy of the IAA’s practice direction, which relevantly advised him that he may provide a written submission commenting on why he disagreed with the delegate’s decision or about any claim that he presented to the Department which was overlooked. It also advised him that he could provide “new information” and what he must provide in order to satisfy the IAA that it should consider any new information (CB 831- 835).
The applicant clearly had ample opportunity to “comment” on his claims. The applicant had an interview with the delegate, his migration agent provided extensive submissions to the delegate and his new migration agent provided a written submission to the IAA. The IAA had regard to all of this information. That the applicant now suggests he had an additional “comment” to make on an aspect of one claim and the IAA did not seek to invite him to comment does not amount to jurisdictional error in circumstances where there was no obligation for the IAA to do so, the applicant provided comments in the form of the submission to the IAA and there was nothing otherwise to suggest to the IAA that the applicant wished to “comment” or had not had an opportunity to do so.
The Court does note, however, that the IAA did determine the application on a basis that differed from the delegate. Section 473DC of the Act provides that the IAA may get any documents or information, or invite a person to give new information in writing or at an interview. The Full Court of the Federal Court has held that the exercise of this discretion is subject to the principles of reasonableness: Minister for Immigration & Border Protection v CRY16 (2017) 235 FCR 475 (“CRY16”).
The question here is whether it was reasonable for the IAA not to invite the applicant to comment in circumstances where the dispositive issue differed from the delegate.
In CRY16, the Full Court held that it was unreasonable for the IAA not to exercise the discretion under s.473DC(3) of the Act in circumstances where the IAA decided the review on the basis of relocation, a matter that the applicant was not on notice the IAA would be considering and which was ultimately dispositive. The Court held that the IAA erred as the IAA knew that it did not have, but the visa applicant was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The IAA did not have that information because the question of relocation was not explored or the subject of findings by the delegate.
Here, the circumstances are inverse. The delegate decided the application on the basis the applicant could relocate, however the IAA determined the application on the basis that the applicant did not need to relocate as he was not at risk of harm in his home area.
The Minister referred the Court to DBE16 v Minister for Immigration Border Protection [2017] FCA 942 (“DBE16”), wherein Barker J (at [61] and [63]) stated:
The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.
…
Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview.
The Minister also referred the Court to DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”) which provides:
72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
75. There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
76. It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
More recently, in ALR17 v Minister for Home Affairs [2019] FCAFC 182, the Full Court found these statements to be “plainly correct”.
It is not the case here, as it was in CRY16, that the IAA did not have information on the point it considered dispositive. The applicant had been on notice, and had provided, an extensive amount of evidence and information in respect of his claims. It was simply the case that the IAA took a different, and adverse, view of the information before it. The IAA was entitled to do so without inviting the applicant to comment: DBE16; DGZ16.
It cannot be said to be unreasonable or a denial of procedural fairness to not invite the applicant to comment on the different view that the IAA had come to on the materials that were before it.
Finally, the Court notes that in the submissions to the IAA, the applicant’s migration agent commented that the delegate overlooked the claim to fear harm on the basis of the applicant’s place of origin, namely Olyad Pashi, and his being imputed to support Shujoyi.
The Court is not satisfied that the IAA was required to invite the applicant to comment on this claim in circumstances where the applicant’s submissions provided comment and information concerning this claim (CB 843-844 at [1.2]), that submission referred to the “evidence” the applicant had provided at the interview (as did the IAA) and the IAA considered country information that the applicant provided as “new information” in support of the claim (CB 854 at [5]).
As the applicant had provided information on the claim (in his submissions to the IAA and at the interview with the delegate) and the “new information” concerning the claim was provided by the applicant, there was no need for that information to be put to the applicant (s.473DE(3)(c)), or for the applicant to be asked to comment on or expand upon the claim.
The Court is not satisfied that it was unreasonable for the not to exercise the power under s.473DC of the Act to invite the applicant to comment on any aspect of his claims.
Ground 2, accordingly, is dismissed.
Conclusion
The Court is sympathetic to the concerns raised by the applicant in so far as they evidence a difficult future. While this Court might have determined differently from the delegate and the IAA, that is not the test relevant to proceedings of this sort. The Court can only look at whether the IAA fell into jurisdictional error.
For the reasons outlined above, the Court is not satisfied that the grounds of the applicant’s judicial review application have identified any jurisdictional error. The Court has otherwise assessed the IAA’s decision and is unable to discern any error.
The application, accordingly, must be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 November 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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