Ewi19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 170
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EWI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 170
File number(s): SYG 3223 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – SHEV – whether the IAA made a conclusion against the applicant based upon a misunderstanding of the evidence and thereby committed jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application for reinstatement is dismissed Legislation: Migration Act 1958 (Cth), s 477
Federal Circuit Court Rules 2001, r 13.03CCases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
MZYEZ v Minister for Citizenship [2010] FCA 530
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 15 October 2021 Date of hearing: 15 October 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: Mr Pipolo appeared on behalf of the First Respondent. ORDERS
SYG 3223 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: EWI19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for re-instatement is dismissed.
2.The Applicant is to pay the First Respondents costs fixed in the amount of $900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of Sri Lanka. The applicant first arrived in Australia as an unauthorised maritime arrival on 4 November 2012.
On 23 March 2017, the applicant applied for a Safe Haven Enterprise visa (“SHEV”) (“Protection visa”). A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa on 11 October 2019.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 13 November 2019, the Authority affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Authority’s decision. The matter was listed for hearing on 6 April 2021. On that day the applicant did not appear. Accordingly, the matter was dismissed pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001(Cth) (“FCC Rules”).
In an Application in a Case filed with the Court on 22 July 2021 the applicant sought to have his case reinstated. The applicant relies upon material contained within an Affidavit affirmed on 2 July 2021.
THE IMMIGRATION ASSESSMENT AUTHORITY DECISION
The Authority’s decision record runs to some 13 typed pages (less annexures) and 64 paragraphs. It is a detailed examination of the applicant’s claims, relevant country information and applicable law.
At paragraph 4 of its decision, the Authority set out the applicants claims. These include relevantly:
•In 2005, the Sri Lankan Army (SLA) set up a camp on land adjoining the applicant’s family’s land. The SLA would sometimes restrict their movements, question them and check their identification.
•In August 2008, the applicant was detained by Sri Lankan authorities. The applicant was held for eight days before being released with reporting requirements.
•In 2009, the applicant was arrested by the SLA. The applicant was held for two days before being released.
•In 2011, on a visit to his home village, the applicant was detained for short period of time during a roundup conducted by the SLA.
•In 2012, Tamil National Alliance (TNA) candidate approached the applicant and others and asked if they wanted to join and help lobby for the TNA. During the 2012 election, he did volunteer work for the TNA.
•In September 2012, the applicant and some other boys were pulled into a white van by unknown people. The applicant stated he did not know who the people were, but believed because of his involvement with the TNA, they were from the Sri Lankan government. The applicant was held for approximately 2 to 3 hours before he was pushed out of the white van.
•After this event the applicant started to look for ways to leave the country. In October 2012, the applicant departed Sri Lanka by boat and travelled to Australia.
The Authority noted that the applicant fears he will be harmed, including being physically assaulted, abducted, arrested or murdered on return because of his ethnicity, actual and/or imputed political opinion, as a Tamil male who resided in the majority Tamil area in Eastern Province, his past experiences with Sri Lankan authorities and his support for the TNA. The applicant also fears that he will be perceived to have lots of money because he will be returning from Australia.
At paragraph 8 of its decision, the Authority accepted the identity of the applicant and that he is a Sri Lankan citizen, and a Tamil male from Eastern Province.
At paragraph 9 of its decision, the Authority accepts that in 2005, the SLA set up an army camp near the applicant’s family’s home. Sometimes, restrictions were placed on the applicant and his family’s movements, they were sometimes questioned and identification checked.
At paragraph 10 of its decision, the Authority accepted that in 2005, the applicant left his home village and travelled to another town where he resided and worked in a manufacturing plant as a goldsmith. The Authority accepted that on a number of unspecified occasions when travelling between areas, the applicant was stopped and his identification checked by Sri Lankan authorities. The Authority accepted in August 2008 the applicant was detained following a bomb blast in Colombo.
The Authority accepted that the applicant was detained in a jail, held for around eight days, forced to do push-ups, physically and sexually assaulted by police and others.
At paragraph 12 of its decision, the Authority notes the applicant’s evidence regarding his conditions on release has oscillated. This varied from reporting to the jail for the next three months, to attending a Police Station and signing in once a month for the next six months. The Authority accepted that the applicant was released after his uncle signed a piece of paper and that a condition of his release was that he had to report each month the police station. The Authority was prepared to accept that these reporting requirements extended beyond six months after this event.
At paragraph 14 of its decision, the Authority was not satisfied that the applicant was required to report after return to his home village at the end of 2011. There were discrepancies between the applicant’s Protection visa interview and a New Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) report, as to whether he had to report once he returned to his home village.
At paragraph 16 of its decision, the Authority noted that the applicant claims that in 2009 he was arrested by the SLA. The applicant claimed that while detained, he was questioned physically and sexually assaulted.
At paragraph 18 of its decision, the Authority was prepared to accept the substantive details of the applicant’s claim, that at an unspecified time in 2009 he was arrested by the SLA, and was held for two days. While detained, the applicant was questioned, physically and sexually assaulted. The Authority was prepared to accept that this took place in the applicant’s home village in Eastern Province.
At paragraph 20 of the Authority’s decision, while accepting the above, the Authority noted that on each occasion, the applicant was released. The Authority was not satisfied, due to the applicant’s release, that Sri Lankan authorities held any serious suspicions about him. If they did, country information indicated that he would been subjected to a period of arrest, rehabilitation or indefinite detention. Beyond initial suspicions for being Tamil, the Authority was not satisfied that the applicant was otherwise of any interest to Sri Lankan authorities at the time.
At paragraph 21 of its decision, in relation to the two occasions the applicant was detained and sexually assaulted, the Authority was satisfied that these were opportunistic attacks by unidentified individuals.
At paragraphs 22 through to 27 of its decision, the Authority found that the applicant’s involvement in political activities and subsequent harm he faced on account of his activities has evolved over time.
At paragraph 28 of its decision, the Authority expressed concern that when asked which political party the applicant supported, he initially stated that was the Tamil United Group. The Authority found it difficult to accept that if the applicant had provided to support to the TNA for a period of four years as claimed, he would not have provided the incorrect name of this group when he had an opportunity to do so. The Authority noted that had the applicant’s claims regarding his abduction had any credible basis, he would provide that, even if only to briefly mention it, when he had an opportunity to do so at his initial entry interview.
The Authority at paragraph 29 of its decision also found it difficult to accept that the applicant would not have provided more detail regarding his involvement in the August 2012 election, yet he stated that he was abducted in September 2012 when the election was over.
At paragraph 30 of its decision, the Authority considered three letters which were provided to support aspects of the applicant’s claims regarding his work for the TNA. A number of concerns are mentioned by the Authority such that it cumulatively considers that it should give no weight to these letters.
At paragraph 31 of its decision, the Authority found that the applicant’s evidence at the protection visa interview, which it listened to, about his past support for the TNA and his subsequent abduction on this basis was unconvincing and not indicative of a lived experience. Accordingly, at paragraph 32 of its decision, the Authority was not satisfied that the applicant had been a truthful witness regarding his past support for the TNA in Sri Lanka.
At paragraph 36 of its decision, the applicant claimed, and the Authority accepted, that since his arrival in Australia, Sri Lankan authorities have been made aware that he is in Australia. The Authority concluded that there was no independent information before it, to suggest that individuals who had spent an extended period of time outside Sri Lanka on return were perceived to have lots of money or to be wealthy and harmed, including being extorted by anyone within Sri Lankan government.
The Authority was not satisfied that, absence any other concerns as to the applicant being an LTTE supporter or anti-Sri Lankan government agitator that he would be harmed on return for simply being Tamil. The Authority noted that the applicant had departed Sri Lanka in October 2012, and it was not satisfied that given the passage of time and the nature of his and his family’s past interactions with Sri Lankan authorities, that the applicant would be perceived as being associated with or involved with the LTTE or anti-Sri Lankan government groups on return.
The Authority accepted that the applicant had left Sri Lanka illegally and that upon return, an investigative process would take place to confirm his identity. The Authority accepted that the applicant may be detained at the airport with other returnees and that he would be most likely charged for illegally departing Sri Lanka. The applicant may be detained overnight or for short period of time in prison before being placed before a Magistrate. The most likely outcome of any Court action would be that the applicant would be given a fine. The Authority is not satisfied that there was any real chance that the applicant would be given a custodial sentence.
At paragraph 53 of its decision, Authority was not satisfied that the conditions of detention for a brief period at the airport, a fine if he entered a plea of guilty, or if he pleaded not guilty, the costs associated with bail and subsequent Court appearances if required, would amount to serious harm requiring protection.
Accordingly, the Authority was not satisfied that the applicant met the requirements of the definition for refugee protection.
Paragraphs 58 through to 63 of its decision deal with complimentary protection requirements. For the same reasons, the Authority was not satisfied that the applicant met the relevant criteria for the grant of complimentary protection and affirmed the decision of the delegate not to grant the applicant a Protection visa.
GROUNDS FOR JUDICIAL REVIEW
The grounds for judicial review are set out in an Initiating Application filed with the Court on 9 December 2019.
That application mistakenly sought an extension of time for the filing of the application for judicial review. As the application was filed within the required 35 day time period, no order of the Court pursuant to s 477 of the Migration Act 1958 (Cth) (“the Act”) is required to extend the time period for the filing of the application.
It is not clear how many grounds are actually relied upon, however, the Court considers that the first grounds listed “a” to “d” are in fact one ground and what follows, is a second ground.
The grounds are as follows, as they appear in the Initiating Application:
a) The IAA erred when it stated: ‘there is no evidence before me to suggest that this aspect of the applicant’s evidence was interpreted incorrectly, and I do not find that it was. I find it difficult to accept that he provided support for the TNA for a period of a least four years as claimed he would not provide the correct name of the group when he when he had an opportunity to do so” (paragraph 28);
b) The applicant did not claim he provided support for the TNA for a period of at least four years. Rather he claimed both that he asked villagers what they wanted sometime after 2008 (paragraph 23), and also that he did volunteer work for the TNA during the 2012 election and on Election Day (paragraph 4; paragraph 24). This period claimed was September – October 2012;
c) There was never any suggestion by the applicant he assisted the TNA for a period of at least four years. The evidence more likely was that he assisted the TNA for about 1 month in 2012 and for short period of perhaps days onwards on one occasion only, sometime 2008;
d) Accordingly the IAA made a conclusion against the applicant based upon a misunderstanding of the evidence and thereby committed jurisdictional error.
1.a. The IAA erred when it stated “the letter dated 25 Fairbury 2015 states that the applicant “work hard for the victory of the TNA during the election that was held on April 2010” and appears to be at odds with the applicant’s evidence at the protection visa interview that he had not assisted TNA at elections until 2012. The applicant also makes no specific mention of his support to the TNA in any election in 2000 and in his protection visa statement or STARRTS report’ (para 30).
b. The IAA stated the applicant had previously claimed that ”sometime between 2008 and 2010,”M” who was the leader of the neighbouring village and a member of the Provincial Council of Eastern Province asked for his help. He asked him to go to the villages and asked them what they needed. He volunteered to do this as he wanted to help other people (para 23).
c. The IAA was incorrect therefore to hold that the evidence was at odds.
d. Accordingly IAA made a conclusion against the applicant based upon a misunderstanding of the evidence and thereby committed jurisdictional error IAA.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter in the Tamil language. Due to COVID 19 health restrictions, the hearing was conducted by telephone
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the First respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.
The Court also explained that if the applicant’s matter was reinstated the Court would be undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the process by which the Court hearing would be undertaken.
Despite Court orders, no written submissions were filed in support of the above grounds of judicial review
At the commencement of the hearing, the Court explained the issues that needed to be addressed, in relation to a reinstatement application. In his Affidavit in support of the reinstatement application, the applicant deposed that he did not keep a diary and became confused as to the precise hearing date and thought it was 16 April 2021, not 6 April 2021.
During cross-examination the applicant conceded that he had been provided with multiple reminders that the hearing date was 6 April 2021 not 16 April 2021, including an email from the first respondent’s solicitors of 25 March 2021. The applicant also admitted to not answering a call from the Court on the morning of the hearing. The applicant stated that he does not answer calls from private numbers with no caller I.D.
In relation to the grounds of judicial review, the applicant told the Court that he just wanted an opportunity for his case to be looked at again.
At the conclusion of the first respondent’s oral submissions, the applicant was again asked if he wished to say anything to the Court in reply. The applicant stated that he did not wish to say anything further.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to the reinstatement application the legal representative for the first respondent submitted that the reason for non-appearance on the last occasion was not strong. It was submitted that the applicant’s evidence that he did not know the hearing date was 6 April 2021 should not be relied upon.
While there was no real prejudice to the first respondent, that of itself was not a matter that should be determinative in favour of reinstatement.
Most significantly, the grounds relied upon by the applicant in the substantive application did not have merit. There was thus no point in reinstatement
The legal representative for the first respondent notes that the first ground alleges that the Authority erred by finding that the applicant claimed he had supported the TNA “for a period of at least four years”, when the applicant maintains that he never claimed this, and the evidence was “more likely” that he assisted the TNA for one month in 2012 and for short period on one occasion during 2008.
The legal representative for first respondent submitted that this complaint cannot succeed because the Authority’s finding, at paragraph 28 of its decision, was clearly open to it on the available materials. Relevantly, the applicant provided the following evidence to the delegate:
a) He attended TNA meetings during visits to his home village between 2008 and 2010 and he “was increasingly interested in the equal rights for Tamil people, particularly following by detainment by police in 2008”: (see; CB 61)
b) The applicant “worked hard for the victory of the TNA… during the election… held in April 2010’’: (see; CB 87).
c) The applicant volunteered for the TNA during the September 2012 election, and was involved in “lobbying, putting up posters, providing information talking to people”: (see; CB 62 [20] – [22]).
It was submitted that the applicant never claimed that he was intermittently involved with the TNA. The applicant’s own evidence was that he was involved in TNA visits in 2008, work for the TNA in 2010 and then volunteered for the TNA in 2012. In those circumstances, it was plainly open to the Authority to find the applicant support of the TNA for “a period of at least four years”.
The applicant’s contention in ground one, that the evidence “more likely” showed that he only assisted the TNA on two occasions, simply takes issue with the way the Authority assessed the evidence before it and constitutes an impermissible invitation to the Court to engage in merits review. In any event, the applicant has clearly given evidence that he was involved on at least three occasions over four years.
It was submitted that the Authority’s findings had a cogent basis on the materials and evidence before it. Nor could it be said to be unreasonable or illogical. It was plainly a finding open to the Authority and the available evidence.
Ground two claims that the Authority misunderstood the applicant’s evidence when it found at paragraph 30 of its decision that the statement in the letter that the applicant worked hard for the victory of the TNA during the election that was held in April 2010 was inconsistent with the applicant’s evidence at the SHEV interview that he had not assisted in the TNA elections until 2012. It was alleged by the applicant that the Authority misunderstood the evidence on this role to find that the evidence was inconsistent, particularly given the Authority found the applicant had claimed in his SHEV interview that “sometime between 2008 and 2010’ M asked for his help: (see; paragraphs 18-19 of the Authority’s decision).
It was submitted that this allegation mischaracterises the Authority’s actual findings and reasons. The Authority found that the applicant’s evidence of this involvement in TNA elections in 2010 was at odds because the letter stated that the applicant had worked for the TNA elections in April 2010, but the applicant’s evidence at the SHEV interview was that he had not assisted the TNA elections until 2012. The Authority also noted that neither the applicant’s SHEV statement nor the STARTTS report, made any mention of the applicant assisting at any election in 2010.
The applicant mischaracterised the Authority’s reasons because, although the Authority accepted that he claimed in his SHEV statement that he is that he helped “M” (“a village leader”), during one of his visits sometime between 2008 and 2010, he did not specify he assisted the TNA during any election (and specifically the 2010 election during that period). It was therefore open to the Authority to find that neither the SHEV statement nor the STARTTS report referred to the applicant supporting the TNA during any election in 2010 and the statement in the letter was at odds with the applicant’s own evidence that he had not assisted in the TNA elections until 2012. Accordingly, the complaint in ground two has no proper basis.
Finally, it was submitted that the Authority’s decision was comprehensive and undertook a considered assessment of the applicant’s claims, evidence and relevant country information. While the Authority accepted the applicant had suffered harm in the past, including sexual assaults at the hands of the SLA and CID, it did not find that he would face a real chance of harm on any return as a result, particularly given he was released each time he was detained. The Authority was not satisfied that the applicant’s accepted past experience of harm meant he was at risk of adverse attention or faced a real chance of harm when scrutinised closely on his return to Sri Lanka as a Tamil asylum seeker.
The Authority considered the applicant’s claims against both the refugee and complementary protection criteria and its conclusions, that he did not face a real chance of serious harm significant harm, were open on the available materials and for the reasons it gave.
CONSIDERATION
The relevant principles to be considered in a reinstatement application are conveniently set out in MZYEZ v Minister for Citizenship [2010] FCA 530 at [7]. They are as follows:
(a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement
(emphasis added)
In relation to the excuse provided by the applicant, that he was confused as to the hearing date, given that he was unrepresented, the Court does not regard it as being a reasonable excuse. The Court has a reasonable expectation, given the importance of the matters before it, that applicants will take reasonable steps to ensure they do not become confused as to the relevant hearing date. Becoming confused as to the hearing date because it had not been recorded in a diary or otherwise, is not a reasonable excuse. The Court also notes, uncontested evidence that the applicant received multiple reminders as to the hearing date of 6 April 2021.
The Court notes the concession by the first respondent that there is no real prejudice if the matter is reinstated.
The third matter relates to the prospects of success of the application if reinstatement were to be ordered.
It is perhaps useful in considering this matter to first set out some general principals of judicial review. It is well established that the Authority is not required to accept uncritically any and all claims made by the applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The Authority’s reasons are not be scrutinised “with an eye keenly attuned to error”: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46]).
A mistake of fact by the Authority, if accepted, will not necessarily constitute jurisdictional error if the disputed claims were not dispositive of the applicant’s claims: (see; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]).
A conclusion by the Authority that is legally unreasonable, irrational or illogical will amount to jurisdictional error warranting intervention by the Court. However the test for unreasonableness is ‘stringent’ and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]).
In this matter the Authority accepted many of the claims made by the applicant. These included the applicant being detained on a number of occasions, questioned, and being physically and sexually assaulted.
Issue is taken by the applicant in Ground one with the finding that the applicant supported the TNA for a period of 4 years. The applicant suggests that the evidence was ‘more likely’ that he assisted the TNA for about one month in the 2012 election and on election day and for a short period on one occasion only, sometime in 2008. The Authority set out its reasons for making this conclusion clearly based on a number of claims by the applicant. These include attending TNA meetings between 2008 and 2010, working hard for the election in 2010 volunteering for the TNA during the election period in 2012.
Even if the Court accepts the assertion that is now claimed by the applicant was that he only provided limited assistance, as set out in the ground of judicial review, and the factual finding by the Authority was wrong, in the Courts view, this would weaken not strengthen the applicant’s claim to fear harm on return.
The applicant claimed to fear harm due to his support for the TNA. If the Court accepts that the applicant’s involvement with the TNA was limited to the activities he claims in the grounds of judicial review, then it was at a very low level. The Authority found that his involvement went beyond that extending over a 4 year period. Notwithstanding this, the Authority was not satisfied for the reasons it gave that there was a real chance the applicant would face harm on return due to his political activities.
In these circumstances the Court does not accept the proposition that the error, if there was one, was dispositive of the applicant’s claims. The Court is not satisfied that any jurisdictional error exists as a result. Further, the Court is not satisfied the conclusions reached by the Authority were legally unreasonable, irrational or illogical. The reasoning process to arrive at the conclusions it did, was open to the Authority on the evidence as set out above. There is nothing in the reasoning process that meets the stringent test required to find legal unreasonableness. Ground one does not have reasonable prospects of success.
Ground two is a variation of ground one. Again, it is asserted that the Authority made an incorrect factual finding that the applicant’s evidence was inconsistent in that he claimed he did not work for the TNA until the 2012 election when the letter from “P” (“a TNA candidate”) indicated he worked hard for the TNA in the 2010 election. In the Court’s view this error, if there be one, makes no difference to the final outcome. The Court accepts there is a variation in the evidence as set out in the letter from “P” and the evidence of the applicant in his SHEV interview and the STARTTS report. The findings of the Authority however were open to it. Again, the Authority found a higher level of involvement with the TNA than the applicant now claims. Having found this higher level of involvement, the Authority was still not satisfied that the applicant faced a real risk of harm upon return. The Court is not satisfied ground two has reasonable prospects of success.
Both grounds at their highest, invite the Court to undertake in impermissible merits review.
As the applicant is unrepresented, the Court has perused the decision records of the Authority. No unarticulated jurisdictional error is apparent.
CONCLUSION
The Court is not satisfied as to the excuse for the applicant’s non-attendance on the last occasion, but more particularly that there are no reasonable prospects of success should the matter be reinstated. Accordingly, the application for reinstatement is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 October 2021
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