FDC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 690
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 690
File number(s): MLG 2537 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 25 August 2022 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority– Safe Haven Enterprise (Subclass 790) protection visa – Authority decision did not disclose jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 360, 425, 473CB, 473CA, 473DB, 473DC Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA784
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Nathanson v Minister for Home Affairs [2022] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 9 August 2022 Date of hearing: 9 August 2022 Place: Melbourne Applicant: In person Solicitor for First Respondent:
Mills Oakley
ORDERS
MLG 2537 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, and Multicultural Affairs”.
2.The application filed 23 November 2017 is dismissed.
3.The applicant pay the first respondent’s costs in the fixed amount of $6,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 SYMONS
INTRODUCTION
By an application filed on 23 November 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 1 November 2017. The Authority affirmed a decision of a delegate of the first respondent, the (then) Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Safe Haven Enterprise visa (“the visa”). The Minister opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Iran who arrived in Australia on 24 July 2013 as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) (“the Act”).
The applicant made an application for the visa on 10 February 2017 with assistance from a registered migration agent. The applicant’s visa application was accompanied by a statement of claim which identified the following matters and events in support of his claims for protection (CB 57-59):
(a)the applicant is an ethnic Kurd and was born a Muslim but renounced his faith;
(b)Kurdish people are considered “second class citizens” in Iran and are refused basic services including access to education. The government suppresses the Kurdish language and impoverishes Kurds by closing natural resources in Kurdish areas, such as oil wells, so as to inhibit growth and development;
(c)around fifteen years ago, the applicant was beaten, tortured and imprisoned by Iranian authorities after the police discovered he had been using drugs. The applicant was punished with impunity when the police discovered he was Kurdish;
(d)the applicant has befriended Christians in Melbourne who have taken him to their church where he has found an interest in Christianity. He fears Iranian authorities will discover this;
(e)the applicant fears the Iranian government has intercepted his information as a result of the February 2014 information leak on the Department of Immigration and Border Protection website. The applicant claims his wife’s welfare card was cancelled by authorities who asserted this was because her husband was in Australia. Plain-clothed authorities have approached and spoken to his wife twice about the applicant;
(f)the applicant fears if returned to Iran he would be seriously harmed, placed in indefinite imprisonment or killed by the Iranian authorities who have been monitoring him since he left and would consider him a dissident or opponent. The applicant apprehends that he will be charged with apostasy, punishable by death under Sharia law, for renouncing Islam. Upon return, he would be interrogated and detained at Tehran airport where due to his mental health issues, he would not be able to conceal the fact that he had renounced his faith.
The applicant was invited to attend an interview before a delegate of the Minister on 16 March 2017. On 17 March 2017, the Department wrote to the applicant inviting him to provide further information for consideration within seven days (CB 87). Responsive to this, the applicant’s then migration agent provided post-interview submissions on 22 March 2017 (CB 88).
The submissions provided additional information directed at the claims the applicant had previously identified (including those at [3] above) and identified an additional claim that the applicant would face harm returning as a failed asylum seeker. It was submitted that the applicant’s cumulative profile reasonably justified a claim to a well-founded fear of persecution (CB 114).
On 27 March 2017, the applicant’s representative provided a letter from the President of the Kurdistan Patriotic Association of Victoria in support of the applicant being an active member of the Association (CB 119).
On 28 March 2017, the applicant’s representative submitted medical reports from the applicant’s doctors, and letters from two members of the Christian community in support of the applicant’s claims of participation in the Christian church (CB 120-124).
On 26 May 2017, a delegate of the Minister refused to grant the applicant the visa. The delegate did not accept that the applicant would face a real chance or risk of harm on return to Iran because of his Kurdish ethnicity, because of past or possible future drug use and a period of imprisonment over fifteen years ago; or as a failed asylum seeker affected by the data breach returning on a temporary travel document. The delegate did not accept the applicant had a genuine belief in the Christian faith nor that he was of interest to Iranian government officials for reasons of his Kurdish ethnicity (CB 136).
On 31 May 2017, the delegate’s decision was referred to the Authority by operation of s 473CA of the Act (CB 143). The review was subject to, and governed by, Part 7AA of the Act.
On 21 June 2017, the applicant’s representative provided submissions to the Authority (CB 156). The submissions raised concerns with the extent of the delegate’s use of independent country information and the failure of the case officer to explore the applicant’s claims in detail at the Safe Haven Enterprise Visa (“SHEV”) interview (CB 157- 158).
On 1 November 2017, the Authority made a decision to affirm the decision of the delegate (CB 163).
THE DECISION OF THE AUTHORITY
The Authority noted at [3] (CB 167) that it had had regard to the referred material under s 473CB of the Act.
At [4] (CB 167) the Authority acknowledged the submission provided by the applicant’s representative on 21 June 2017 and said, in respect of it as follows:
On 21 June 2017 the applicant’s representative provided a submission to the IAA. The submission explains why the delegate’s decision is wrong, essentially restating the applicant’s claims and drawing on the country information considered by the delegate, and putting forward legal argument. I do not consider that it contains new information.
Between [5]- [16] (CB 167-169) the Authority identified the applicant’s claims to fear harm in Iran as relating to his profile as an ethnic Kurd (with an imputed political opinion) who has renounced Islam and is interested in Christianity, has been monitored by the Iranian authorities, and is likely to face adverse attention from authorities (likely imprisonment and torture) because of his past record of having been a drug addict.
At [18] (CB 169) the Authority accepted the applicant’s claimed identity and that he was a national of Iran and an ethnic Kurd.
At [20] (CB 170), the Authority addressed the applicant’s credibility and recorded that it had concerns that the applicant had “changed aspects of his evidence over time, or when challenged, in a manner indicating that he was prepared to say anything if he thought it would help his cause”.
In this regard, the Authority cited an example from the applicant’s SHEV interview during which the applicant could not recall the reasons his cousin was also seeking asylum in Australia or why his cousin had not raised similar claims of discrimination based on Kurdish ethnicity, despite the fact that his early evidence was that they had lived in the same village. The Authority noted that the applicant then claimed he and his cousin did not grow up together and that his cousin’s family only lived in the village for a short time, a claim which appeared inconsistent with his initial evidence ([21] CB 170).
The Authority also found that the applicant’s claims about his political activity “seemed to be embellished over time” ([22] CB 170). The Authority noted that the applicant initially (at the entry interview and in written claims) said that he had never been politically active in Iran, and did not claim that he had been in Australia, whereas he had later said that he had attended political meetings in his village and also attended the meetings of a Kurdish group in Australia.
The Authority noted that the applicant’s evidence about the questioning he underwent at the airport “appeared to change, as initially he indicated that brief words were exchanged, and said that the officials even joked with him about his plans, while he later claimed that he was taken into a separate room and questioned” ([23] CB 170).
Ultimately the Authority found these to be “discrepancies, inconsistencies and obvious exaggerations” that cast some doubt on the reliability and credibility of the applicant’s evidence overall and it was not prepared to accept the applicant’s unsupported claims uncritically and at face value ([25] CB 170).
Having recorded these general credibility findings, the Authority then went on to consider the discrete claims raised by the applicant. The Authority first considered the applicant’s claims of discrimination arising from his being an ethnic Kurd. The Authority noted that the applicant had provided little detail of these claims. The Authority considered the applicant’s submission that the delegate failed to explore his claims properly at the SHEV interview and that the applicant was prevented by his mental health issues from presenting his claims fully but found that the evidence did not support either contention. The Authority reasoned that the interview had lasted for over two hours, was “thorough and sympathetic” and included open-ended questions. The Authority emphasised that the applicant’s representative had failed to draw more information from the applicant, or provide additional details in oral or written submissions. The Authority considered the medical evidence put forth by the applicant but was not satisfied that the applicant’s conditions prevented him from fully presenting details about the discrimination and mistreatment he claimed to have suffered as a Kurd ([26] CB 169-171).
The Authority accepted that country information indicates that Kurds are a disadvantaged minority in Iran, where they experience entrenched discrimination in relation to employment, education, housing and the exercise of cultural, political and civil rights ([27] CB 170). However, the Authority was not willing to accept that the evidence before it could indicate that the applicant was denied the opportunity to an education, to earn a livelihood or that the applicant suffered economic hardship threatening his capacity to subsist. The Authority found that the applicant has worked in unskilled jobs (taxi driving and farm work) commensurate with his education. The Authority noted that the applicant confirmed during his entry interview that his cousin (also a Kurd) was educated to a pre-university level, indicating higher education was available to Kurds. The Authority found that while the applicant may have faced “some discrimination in terms of rudeness or unhelpfulness” in accessing government services, it was not satisfied that this amounted to significant discrimination or reached the threshold for serious harm. It also noted that in Ilam, Kermanshah, where the applicant lived, Kurds constitute a majority, reasoning that the applicant’s personal exposure to official discrimination of this kind would have been limited [28] (CB 171).
At [29] (CB 171) the Authority accepted that while the applicant, as a Kurd, may have been treated more harshly than others when he was arrested and detained in relation to drug offences, it considered this to have been a “one-off incident, never repeated” without any ongoing issues and that this past mistreatment would not indicate a real chance of similar or related harm.
The Authority found that the evidence provided by the applicant did not satisfy it that he had suffered discrimination as a Kurd (even considered on a cumulative basis along with entrenched economic discrimination against Kurds generally) that could support a conclusion that he had personally suffered any form of serious harm, nor that he would be subject to a level of discrimination that would constitute serious harm, should he be returned to Iran in the reasonably foreseeable future ([30] CB 171).
The Authority next considered the applicant’s claim to apprehend harm arising from his political activism. It acknowledged that country information indicates that Kurds who are, or are perceived to be, politically active may face harsh punishment, but found that otherwise, most Kurds would not come to the attention of the authorities ([31] CB 172). The Authority reached the conclusion that the applicant did not have a political profile of any kind in Iran based on the following:
(a)the applicant’s claim (made during the SHEV interview) that he had attended meetings in his village and spoke with others about the lack of a local school was a late claim raised by the applicant who did not assert any adverse consequences arose from these meetings. The Authority considered that “these were not political meetings as such, but simply a few parents complaining among themselves” ([32] CB 172).
(b)the applicant’s evidence about his participation in Kurdish activities in Australia was found to be vague, suggesting at least some of the activities were community celebrations and not necessarily political in character. The Authority found that the letter submitted from the Kurdish Patriotic Association added little weight to these claims given it did not state the precise nature of the applicant’s involvement ([33] CB 172).
(c)in terms of the applicant’s claim that he was “too afraid” to participate in activities either in Iran or Australia that might cause him to be identified as a Kurdish activist, the Authority found that the applicant’s evidence did not indicate any significant awareness of Kurdish political movements, or parties, or Kurdish issues. It found claims that he would be “killed immediately, or imprisoned and tortured” if he engaged in political activity or protest to be “clearly an exaggeration”. It did not accept that the applicant refrained from political activism because of fear of persecution, but rather was of the view that he was simply “not that interested” ([34] CB 172-173).
The Authority then turned to the applicant’s claims of being monitored by Iranian intelligence officers who were said to have visited his house after his departure and to have been responsible for cessation of welfare payments to his wife. The Authority found that the applicant had provided no details of the claimed monitoring and neither was there information before the Authority to suggest that every Kurd in Kurdish areas was subjected to monitoring by intelligence agencies. The Authority noted further that there was no reason why the applicant would have been monitored, having regard to his own evidence that he was not politically active. The Authority found the claim to be likely exaggerated and that it was possible the welfare payment had been stopped due to normally applicable rules and that there was insufficient information to satisfy it that it was some sort of punitive measure applied on a discriminatory basis ([35]-[37] CB 173).
The Authority accepted that the applicant had renounced Islam. It noted that country information indicates that many Iranians do not observe Muslim rituals and that this rarely causes problems. It found that generally the Iranian government does not monitor religious observance and was satisfied that if the applicant was not attending the mosque or failed to observe Islamic practice, this would not come to the attention of the authorities ([38] CB 173).
The Authority accepted that the applicant had attended a Christian church once in Australia but did not accept that he had converted to Christianity nor that he would declare himself a Christian on return to Iran. It found the applicant had demonstrated little or no knowledge of Christianity at the SHEV interview and that his extremely limited involvement in the Christian church in Australia would not come to the attention of the Iranian authorities or result in risk of harm (on that basis) on return ([39] CB 174).
Given the Authority’s finding that the applicant did not possess any genuine religious beliefs, the Authority viewed the applicant’s claim that he would be unable to conceal his renouncement of Islam (due to his mental health issues) during a process of interrogation on return to Iran as redundant. The Authority found (in any case) that it was highly unlikely that the applicant would even be questioned about his religious beliefs at the airport ([40] CB 174).
In addressing the applicant’s former drug offending, the Authority noted that it was not clear on the evidence whether the applicant had ever been charged or convicted or whether there would be an official criminal record, but on his own evidence, the applicant had not claimed any ongoing problems, including stigmatisation. The Authority referred to the submission by the applicant’s representative that there was a real chance that the applicant might start using drugs again and might thereby face harm in the future. The Authority ultimately considered this possibility to be highly speculative and remote given the applicant’s own evidence that he had been clean for three years ([41] CB 174-175).
Finally, the Authority accepted that the Iranian authorities might know, or at least suspect, that the applicant had sought asylum overseas due to the length of time he has been away. The Authority found, based on country information, that there was no real chance the applicant would be subjected to harm beyond routine questioning on return to Iran, if he was identified as a Kurdish failed asylum seeker travelling on a temporary document. The Authority acknowledged that the information disclosed as a result of the data breach might alert the authorities to the fact that the applicant had applied for asylum in Australia but found that the character of the information would not, of itself, result in a real chance of harm to the applicant ([42]-[48] CB 175-176).
The Authority separately considered whether the applicant might satisfy the complementary protection criterion. The Authority referred to and transposed its findings made in the context of its refugee assessment. The Authority found, based on these findings, that the applicant was not at any risk of significant harm referable to the claims that he had articulated. The Authority was also not satisfied that there was any basis arising from credible evidence before it to support a finding that the applicant faced a real risk of significant harm for any other reason, or arising from his personal circumstances considered cumulatively. The Authority found that the applicant did not meet s 36(2)(aa) of the Act ([50]-[58] CB 177-178).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 23 November 2017 identifies the following grounds:
1.The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.
2.The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
3.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
On 8 August 2018, a Registrar of this Court made orders to progress this matter to hearing. These orders included that the applicant, at least 28 days before the hearing, file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions. The applicant did not file any material responsive to these orders or indeed, any material beyond the application and original affidavit that had attached a copy of the decision of the Authority.
On 8 August 2018 and 19 May 2020, the Minister filed a court book and supplementary court book, respectively. The supplementary court book contained the applicant’s entry interview documentation.
On 26 July 2022, the Minister filed written submissions dealing with the pleaded grounds of review.
The matter came before me for final hearing on 9 August 2022.
On that day, the applicant appeared unrepresented and with an interpreter in the Persian (Farsi) language. The Minister was represented by solicitor Mr Daly.
At the outset of the hearing I confirmed with the applicant that he had been provided with copies of the court book and supplementary court book and the Minister’s written submissions. However, the applicant told the Court that he had been unable to read (and therefore comprehend) these documents.
Although I appreciate that the prejudice that accrues to the applicant by reason of his language difficulties cannot be completely ameliorated, I asked the Minister’s representative (when he addressed the Court) to identify the significant findings of the Authority, the characteristics of the review, the grounds of review identified by the applicant and the Minister’s response to those grounds, as well as his response to the matters raised by the applicant orally during the hearing. The Minister’s representative attended to these matters in comprehensive fashion and I am satisfied that the applicant understood (as the hearing unfolded) how the Authority approached its decision-making and how the Minister responded to the applicant’s challenge to that decision.
Further, in accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA784 at [9], at the commencement of the hearing I invited the applicant to tell me what it was that he would like to say, in support of his application, to the effect that the Authority was wrong in its decision to affirm the decision of the delegate to refuse him the visa.
The applicant told the Court that he had “told the truth” and he did not know why the delegate and the Authority “didn’t believe my words”.
Having regard to grounds one and two identified in the application for review, both of which contain an allegation that the Authority failed to alert the applicant to (new) issues arising on the review, I asked the applicant if there was anything that he wanted to say about this matter in particular. The applicant indicated that he did not.
In oral submissions, the Minister dealt first with the written grounds raised in the application for judicial review.
In relation to ground one, the Minister submitted that the Authority did not make its decision on a different basis from the delegate and that therefore no new issues arose before it which might ground an obligation on the part of the Authority to inform the applicant of such issues.
The Minister noted that while the Authority had before it a submission from the applicant’s representative that had not been before the delegate, the receipt (and consideration) of this submission did not enlarge the issues that were before it on the review but, that in any case, there were two distinct characteristics of the Part 7AA review which meant that an “issues based” analysis was not appropriate.
In this regard, the Minister submitted firstly that there was no obligation on the Authority to adopt the same reasoning as the delegate when conducting a fast track review under Part 7AA of the Act and that, second, Part 7AA does not contain a duty similar to that found in s 360 or s 425 which might have required it to invite the applicant to comment on (aspects) of its proposed reasoning, to the extent that this constituted a new “issue”. The Minister made the overriding submission that there was no denial of procedural fairness to the applicant in this case, including in circumstances where the applicant had been unable to identify any “new issue” when invited by the Court to do so.
In relation to ground two, the Minister noted that it was not apparent what further information (on the applicant’s case) the Authority should have obtained. In this context, the Minister noted that the Authority (at [4]) had referred to the written submission it had received from the applicant’s representative. The Minister acknowledged that this paragraph (reproduced at [13] above) did not contain an explicit statement that the Authority had considered the written submission. However the Minister submitted that it could be inferred that the Authority had taken the written statement into account as a consequence of the Authority’s finding that it was not new information and its earlier recitation of its contents. The Minister took the Court to passages from the written statement that put the position beyond doubt. These included paragraphs [44]-[45] (CB 175-176) in which the Authority referred expressly to the submission, as well as to country information and a decision of the Authority in a different case, that had been identified in that document.
The Minister further submitted that the applicant’s prospects of success in relation to ground two were inhibited having regard to s 473DB(1) of the Act, which requires the Authority to conduct its review without accepting or requesting any new information, and without interviewing the applicant and s 473DC(2) – the Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
Turning to ground 3, the Minister submitted that it was not a proper ground of judicial review, noting that the applicant had (in any case) received some assistance from Victoria Legal Aid, given they were previously on the record for some time.
Turning to the matters raised by the applicant orally at the hearing, the Minister characterised them as being directed at merits review and submitted that they were not capable of establishing jurisdictional error. It was submitted that while the applicant might disagree with, or be dissatisfied by, the decision, it was open to the Authority to reason in the manner that it did.
At the conclusion of the Minister’s submissions, I gave the applicant a further opportunity to identify any errors in the decision of or approach taken by the Authority to his claims. The applicant sought, through his response, to repeat claims made before the Authority, especially those made in connection with his claim to have converted to Christianity. The applicant asserted – without further explication – that the Authority had misunderstood his evidence on this point.
CONSIDERATION
In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it “exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [29].
To amount to a jurisdictional error, an error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] and, more recently, Nathanson v Minister for Home Affairs [2022] HCA 26 at [1] (per Kiefel CJ, Keane and Gleeson JJ).
The applicant has not clearly articulated any jurisdictional error in his written application to this Court. Indeed, it became apparent through the Court’s questions, that the applicant had little familiarity with the document or the concepts which it purported to identity. I mean no criticism of the applicant by that observation. The successful articulation of jurisdictional error is notoriously difficult.
The applicant’s case, taken at its highest, involves a complaint that the Authority failed to properly consider his claim to apprehend harm arising from his conversion to Christianity and that this failure reflected a misapprehension on the part of the Authority of the applicant’s evidence.
However, I am not persuaded that the decision of the Authority manifests error of this kind. In the first place, the applicant’s claim of religious persecution was premised not on his conversion to Christianity but instead his renunciation of Islam (see applicant’s written submissions to the Authority at CB 159-160). The Authority accepted that the applicant had renounced Islam but found, having regard to country information, that his non-observance of Islam practices would not bring the applicant to the attention of the authorities.
Further, it is clear from paragraph [39] of its written statement, that the Authority gave careful consideration to the applicant’s claim that he had been involved with the Christian church in Australia. The Authority (unlike the delegate) was prepared to accept that the applicant had an interest in Christianity that was pursued for reasons other than strengthening his claims to be a refugee. However, having regard to the applicant’s own evidence in the SHEV interview that he had attended church on one occasion about five or six months prior, it rejected the applicant’s claims that he was seeking to convert because it was not satisfied that the applicant had taken steps or demonstrated a level or quality of knowledge, consistent with a change of religion. I consider that this reasoning was open to the Authority.
As far as the applicant’s two substantive pleaded grounds of review are concerned, I note the lack of particulars but have considered, having regard to the applicant’s status as a self-represented litigant, whether they might nonetheless expose jurisdictional error.
Ground one involves an allegation of procedural fairness arising from the Authority’s failure to alert the applicant to a new issue of which the applicant was not previously aware or arising from the Authority’s (alleged) departure from the delegate’s reasoning.
The difficulty which confronts the applicant however is that in this particular case there was a degree of symmetry between the approach and analysis employed by the delegate and the Authority. In making this observation, I should not be understood as suggesting that there was any abdication of responsibility on the part of the Authority but rather that the issues which ultimately proved dispositive in each case had much in common. The success of this ground is also impeded by the absence of any statutory obligation on the part of the Authority to identify for the applicant “the issues arising on the review”. Ground one is without merit.
Ground two involves an allegation that the Authority failed to consider the exercise of its discretion under s 473DC of the Act to get new information from the applicant.
As noted above, the Authority took into consideration a written submission provided by the applicant’s representative and gave particular consideration to the country information to which it referred and an earlier decision of the Authority which it was said (by the applicant), was analogous to his case.
Otherwise, I have been unable to identify any characteristic or feature of the review that would have required the Authority to turn its mind to obtaining from the applicant “new information” and the applicant was unable to identify any information or material that the Authority should have made efforts to obtain. I find that ground two is also without merit.
DISMISSAL
For the reasons which I have given above, I will order that the applicant’s application filed on 23 November 2017 be dismissed and that the applicant pay the first respondent’s costs of the proceeding in a fixed sum of $6,000.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 25 August 2022
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