FKM17 v Minister for Immigration
[2019] FCCA 1688
•12 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKM17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1688 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims of past harm not believed and fears of future harm found not to be well-founded – whether the Authority misconstrued s.473DD, or misunderstood a claim, or failed to dispose of a claim or misdirected its enquiries considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 Minister for Immigration v CQW17 [2018] FCAFC 110 |
| Applicant: | FKM17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3836 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
ORDERS
The application filed on 12 December 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3836 of 2017
| FKM17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka, arrived in Australia at Cocos (Keeling) Islands on 26 October 2012 as an unauthorised maritime arrival.[1] He participated in an irregular maritime arrival entry interview on 18 January 2013.[2]
[1] Court Book (CB) 31 and 96
[2] CB 118
On 15 December 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV).[3] He attended a SHEV interview on 27 March 2017.
[3] CB 7, 11
The applicant’s claims are as follows:
a)he is a Tamil and a Hindu from the Eastern province;
b)he supports and voted for the Tamil National Alliance (TNA) in the September 2012 Provincial elections. After the voting, he was playing on a field near his home when he was approached by members from the Pilliyan Group and asked to go and vote for them. He said that he had already voted for the TNA. He was assaulted by a person from the van;
c)he escaped when men from the Pilliyan Group came to his home looking for him the next day. The men spoke to his uncle and enquired about the applicant’s whereabouts. His uncle advised the men that the applicant was not there. The men told his uncle that they would kill the applicant if he did not present himself to the Pilliyan headquarters the next day. He did not go to the headquarters the next day;
d)one week later the Sri Lankan Police (SLP) came to the applicant’s home looking for him and accused him of holding arms and ammunition. He was not home. The SLP stated that he should surrender the arms and report to the police station for investigation. The applicant did not report to the police station;
e)the applicant feared for his life and his uncle arranged for him to leave Sri Lanka;
f)on 17 February 2016 the SLP visited his uncle’s home and stated that they suspected the applicant of hiding ammunition. His uncle informed them that the applicant was overseas. The SLP stated that if he was ever to return he would face harm;
g)the applicant fears harm and “white van style” abduction if he is returned to Sri Lanka from the SLP, Criminal Investigation Department (CID), Pilliyan Group and paramilitary organisations for a number of reasons, including that the “white van” abductions still occur;
h)the applicant fears harm as he has been suspected of hiding weapons and ammunition, he is a young Tamil from the Eastern province, he supported and voted for the TNA, and has an imputed association with the Liberation Tigers of Tamil Eelam (LTTE);
i)the applicant further fears harm both as a failed asylum seeker who departed illegally and has remained away for so long and as a result of a recent shooting incident by unidentified persons in Batticaloa; and
j)the applicant has mental health issues from the events he was exposed to and having fled Sri Lanka.
On 7 April 2017, the applicant (through his representative) provided a post-interview submission to the Minister’s Department comprising a series of news articles.[4]
[4] CB 193
On the same day, the delegate refused to grant the applicant a SHEV.[5]
[5] CB 96
The matter was subsequently referred to the Authority.[6] By email sent on 3 May 2017, the applicant (through his representative) provided a submission to the Authority dated 2 May 2017.[7]
[6] CB 252
[7] CB 267
On 21 November 2017, the Authority affirmed the delegate's decision not to grant the applicant a SHEV.[8]
Authority decision
[8] CB 280
New information
The Authority acknowledged receipt of the applicant's submission dated 2 May 2017 and had regard to it to the extent it responded to issues in the delegate's decision.[9]
[9] CB 281 [4]
To the extent the submission included new information (new information in respect of the applicant’s claim that his uncle was given an arrest warrant by the police (arrest warrant claim) and an article dated 12 February 2017), the Authority was not satisfied the new information could not have been provided to the delegate before the delegate made her decision or was credible personal information, or that there were exceptional circumstances to justify considering the new information.[10]
[10] CB 281 [5]-[6]
Protection claims
The Authority summarised the applicant’s claims for protection[11] and accepted the applicant belongs to the ethnic Tamil minority from the Eastern province and voted for the TNA in the 2012 Provincial elections.[12]
[11] CB 282 [7]
[12] CB 283 [11]
However, the Authority had significant concerns regarding the veracity of the balance of the applicant's evidence and did not accept the applicant's mental health condition explained the discrepancies in his evidence.[13]
[13] CB 283 [12]
The Authority did not accept the events claimed to have occurred after the applicant voted in September 2012, namely that:
a)the applicant was approached by persons in the Pilliyan group, beaten and taken to their van;[14]
b)the Pilliyan group attended his home on a number of occasions, suspected him of being a LTTE cadre and accused him of possessing arms;[15]
c)after the applicant left Sri Lanka, the SLP visited his uncle's home and implied they suspected him of hiding ammunition, told his uncle they had found arms near his home or returned with an arrest warrant;[16]
d)the Sri Lankan government told the applicant he is a terrorist and if he is returned he would be arrested;[17]
e)the applicant's brother sought asylum in Switzerland because he was being interrogated for stealing arms and ammunition;[18] or
f)a shooting reported in the Tamil Guardian was related to the applicant or the TNA.[19]
[14] CB 284 [13]
[15] CB 284 [14]-[16]
[16] CB 285 [18]
[17] CB 285 [18]
[18] CB 285 [18]
[19] CB 285 [19]
The Authority found the applicant had fabricated the above claims to strengthen his claims for protection and found his evidence on the whole had been inconsistent and implausible and was not satisfied he was a witness of truth.[20]
[20] CB 286 [20]
Because the Authority did not accept that the claimed incidents occurred, it also did not accept the applicant suffered from fear and anxiety due to the claimed incidents, as the representative claimed.[21] Further, based on the lack of evidence, the Authority was not satisfied the applicant had a mental health condition.[22]
[21] CB 286 [21]
[22] CB 286 [22]
The Authority was not satisfied the applicant suffered any harm due to his minor support and for voting for the TNA, or that he had a profile that would have attracted the attention of the Sri Lankan authorities or anyone else.[23] Noting the applicant had not engaged in any political activity in Australia and his evidence that he did not have any political intentions regarding the TNA, the Authority was not satisfied he would assist the TNA in the future. The Authority found the applicant did not face a real chance of serious harm on the basis of his (minor) support for the TNA.[24]
[23] CB 286 [23]
[24] CB 288 [27]
The Authority was also not satisfied the applicant would be imputed to hold pro-LTTE opinions or be suspected of having been involved with the LTTE and found he did not face a real chance of serious harm on that basis.[25]
[25] CB 288 [28]
The Authority accepted the applicant left Sri Lanka illegally,[26] but was not satisfied his profile was such that he would be at risk of harm during or after the routine investigation which would be conducted upon his arrival in Sri Lanka.[27] Because the applicant was not involved in people smuggling, the Authority found there was no real chance he would be given a custodial sentence.[28] The Authority was not satisfied the imposition of any fine, surety or guarantee would constitute serious harm and taking into account the applicant’s employment history, was not satisfied he would be unable to post bail.[29] The Authority was similarly not satisfied any brief period of detention would amount to serious harm and found the totality of treatment on return would not amount to serious harm[30] and in any case, would not involve systematic and discriminatory conduct.[31]
[26] CB 288 [29]
[27] CB 288 [30]
[28] CB 288 [31]
[29] CB 289 [32]
[30] CB 289 [33]
[31] CB 289 [34]
Turning to its complementary protection assessment, the Authority adopted its anterior findings and was satisfied there was not a real risk he would face significant harm for the reasons he claimed.[32]
[32] CB 290 [41]-[42]
The Authority was not satisfied that the process on return amounted to significant harm, that the applicant would be exposed to significant harm during that process or that the penalty or remand conditions amounted to significant harm. The Authority was also not satisfied that there was an intention to inflict pain or suffering or that there was a real risk the applicant would face significant harm.[33]
[33] CB 291 [43]
The current proceedings
These proceedings began with a show cause application filed on 12 December 2017. The applicant continues to rely upon that application. There are six grounds in it:
1.The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of the claims relating to arrest warrant by the Authority (IAA at [5]). The Authority's incorrectly applied wrong test and / or misconstrued s 473DD. The Authority has fallen into error as to the construction of s 473DD and in particular in relation to personal credible information.
Particulars
1.1The issue of arrest warrant / claims relating to arrest warrant was already before the delegate and was no new information / claim.
1.2The Authority fell into error in considering “new information” under s 473DD.
1.3The Authority fell into error as it failed to take into account explanations as personal credible information; erroneously considering the information as new information, and applied wrong test (IAA at [5]).
1.4 The Authority committed jurisdictional error.
2.The Authority fell into error in consideration of the Applicant's claims of being accused of holding / hiding weapons. The Authority has misapprehended the claims fallen into error by classifying the Applicant's name not being mentioned in news article (IAA at [15]) and is irrational / illogical or unreasonable.
Particulars
(a)The Representative referred to article dated 17.2016 to the Authority regarding discovery of arms and ammunitions close to the Applicant’s house.
(b)The article did not refer to the Applicant by name (IAA at [15]).
(c)The Authority’s consideration that article should have name is misguided and irrational / illogical.
(d) The Authority fell into jurisdictional error.
3.The Authority has failed to make findings and give consideration of the Applicant's claim that Pillayan send warning through his uncle that they would kill him if he did not come and see them; the Authority being aware of the claim (IAA at [7]) but has not disposed of the claim.
Particulars
(a) The Authority referred to the issue;
(b)The Authority has made no findings (even if there was no documentary evidence to support the Applicant’s claims).
(c) The Authority fell into jurisdictional error.
4.The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of article submitted to the Authority (IAA at [6]; [15]). The Authority's incorrectly applied s 473DD; thereby falling into error as to the construction of s 473DD.
Particulars
4.1The Authority fell into error as it failed to take into account all matters constituting exceptional circumstances take when it failed take into account to consider the information it classified as new information, and applied wrong test.
4.2The Authority had fallen into in application of section s 473DD was applicable in the circumstances and should have been engaged with all circumstances in complying with the section.
4.3The Authority erred in consideration in particular did not consider the entirety of matters under s 473DD singularly and cumulatively in consideration of exceptional circumstances.
4.4 The Authority committed jurisdictional error.
5.The Authority has failed to make findings and give consideration of the Applicant's claim of fear of abduction by white vans and has not disposed of the claim.
Particulars
(a) The Authority failed to address the claim.
(b) The Authority has made no findings.
(c) The Authority fell into jurisdictional error.
6.The Authority fell into jurisdictional error in misdirecting its inquiries regarding the warrant.
Particulars
6.1The issue of arrest warrant / claims relating to arrest warrant has [been] misapprehended by the Authority
6.2There was no service of the warrant on the uncle but was approached about the Applicant’s whereabouts.
6.3The Authority misunderstood and misapprehended the claims regarding arrest warrant and fell into error.
6.4The Authority committed jurisdictional error.
(errors in original)
The only evidence I have before me is the court book filed on 5 March 2018.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 19 June 2019.
Did the Authority apply the wrong test or misconstrue s.473DD?
By Ground 1 and Ground 4 the applicant impugns the Authority’s reasoning in relation to new information at [5] and [6].
At [5][34] the Authority stated:
The submission provided information in reference to claims made by the applicant at his protection visa interview (PV interview) that he was informed by his uncle in March 2017 there was a possible arrest warrant in his name and he should not return to Sri Lanka. The applicant's representative states that they are instructed by the applicant that "his uncle is unable to provide any written statement as regards to this (the warrant) matter because he is currently serving as a public servant and he fears the authorities might take action against him and against his family members" and this is new information for the purpose of this assessment. The delegate questioned the applicant at length regarding his claims that there was an arrest warrant pending against him at his PV interview and put him on notice that she found it difficult to accept he had an arrest warrant pending. At his PV interview the applicant said that his uncle was given an arrest warrant by the police. When asked whether he had asked his uncle what was written in the arrest warrant the applicant said that his uncle did not ask and that the police had said that they had come to arrest him. I am not persuaded by the applicant's reasons that his uncle was unable to provide a written statement regarding the warrant as he was currently serving as a public servant and he feared the authorities might take action against him. The applicant has previously said that the police delivered the arrest warrant to his uncle that indicates that the authorities would be aware of his circumstances and this is inconsistent with his reasoning that his uncle fears the authorities. I am not satisfied that this is credible personal information. I am not satisfied that this information could not have been provided to the delegate before a decision was made or that if known it would have affected the consideration of his claims. I am also not satisfied that exceptional circumstances exist to justify considering this new information.
[34] CB 281
I agree with the Minister’s submissions in relation to Ground 1.
Ground 1
Ground 1 relates to the Authority’s consideration of the new information in respect of the arrest warrant claim. The applicant contends that the information in respect of the arrest warrant was before the delegate and therefore, not new information.
Before the delegate, the applicant claimed that in March 2017 his uncle told him an arrest warrant had issued for him in relation to the discovery of weapons. The applicant said he did not know when the arrest warrant was issued because his uncle did not disclose this information to him as he did not want to worry him. The applicant claimed that police came with the arrest warrant to arrest him.[35]
[35] CB 237
In his submission to the Authority, the applicant (by his representative) reiterated the arrest warrant claim as made before the delegate and stated:[36]
We are instructed by the applicant that his uncle is unable to provide any written statement as regards this matter because he is currently serving as a public servant and he fears the authorities might take action against him and against his family members.
[36] CB 268
The Authority identified this part of the submission as new information:[37]
The applicant’s representative states that they are instructed by the applicant that “his uncle is unable to provide any written statement as regards to this (the warrant) matter because he is currently serving as a public servant and he fears the authorities might take action against him and against his family members” and this is new information for the purpose of this assessment.
[37] CB 281 [5]
I accept that this is the correct approach where submissions contain both submissions and new information.[38] The Authority in the present case correctly drew a distinction between a submission directed to an established pool of factual information and new factual material sought to be placed before the Authority.
[38] Minister for Immigration v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80 at [74]
The Authority went on to find it was not satisfied the new information could not have been provided to the delegate before the delegate made her decision or was credible personal information, or that there were exceptional circumstances to justify considering the new information.[39] Contrary to the applicant's submissions in respect of Ground 1, the Authority did not misconstrue or misapply the phrase “exceptional circumstances”.[40] In any case, the Authority also made findings under s.473DD(b)(i) and (ii) of the Migration Act 1958 (Cth). The requirements of s.473DD(a) and (b) are cumulative and the Authority is prohibited from considering new information unless it is satisfied of the matters in s.473DD(a) and (b).[41]
[39] CB 281 [5]-[6]
[40] cf CHF16 v Minister for Immigration (2017) 257 FCR 148; [2017] FCAFC 192 at [44]
[41] Minister for Immigration v CQW17 [2018] FCAFC 110 at [36]
By particular (c) to Ground 1, the applicant challenges the Authority's finding it was not satisfied the new information was credible personal information. In making that finding, the Authority stated that it was not persuaded the applicant's uncle was unable to provide a written statement regarding the warrant because his uncle feared the authorities. The Authority observed that this was inconsistent with the applicant's previous statement that the police delivered the arrest warrant to his uncle, indicating the authorities would be aware of his circumstances.[42] Insofar as the applicant seeks to cavil with the Authority's finding in this respect, it is an attempt to draw the Court into impermissible merits review.
[42] CB 281 [5]
I accept that there is no bright line between what is “information” and what is a submission or explanation. An applicant may, in a submission, offer an explanation why further details about a particular claim cannot be provided. That may not necessarily be “information” for the purposes of the review; but, as I put to counsel for the applicant, if the submission concerning the uncle’s inability to provide a written statement was information, in the sense of facts or circumstances having some potential bearing on the consideration of the applicant’s claims, then it was certainly new information because it had not been provided previously. If it was not information at all, because it was simply an explanation why further details about the arrest warrant could not be provided, then I do not think that any error in characterisation by the Authority would go to jurisdiction because it would not be material.
I also accept the Minister’s submissions in relation to Ground 4.
Ground 4
Ground 4 relates to the Authority's consideration of the new information comprising an article dated 12 February 2017. The article is from the Sunday Observer newspaper and titled “Karuna forms new political party.”[43]
[43] CB 272
The applicant seeks to impugn the Authority’s reasoning at [6][44] where the Authority stated:
The submission also includes an article dated 12 February 2017 from the Sunday Observer titled "Karuna forms new political party". This article was not before the delegate and is new information. The applicant's representative states that the article was published close to the PV interview and on that basis could not have been provided to the delegate. In addition, had the information been known by the delegate, it may have affected the consideration of the applicant's claims and that there are exceptional circumstances when a person's life is at risk. I note that the applicant received assistance preparing his PV application and statement. The applicant was also represented at his PV interview which was held on 27 March 2017. The delegate's decision was made on 7 April 2017. The applicant was given numerous opportunities to provide information to support his protection claims and it was explained to the applicant the importance of providing all relevant information in his PV application and interview. The article was not published in the days before the interview. I am not persuaded by these submissions. The article is dated 12 February 2017 and the applicant has not satisfied me that it could not have not have been provided to the delegate before a decision was made, that it is credible personal information or that if it had been known it would have affected the consideration of his claims. I am also not satisfied that exceptional circumstances exist to justify considering this new information.
[44] CB 281-282
On its face, the article was not information about the applicant or any other person. It was obviously intended to corroborate the applicant’s claims about the arrest warrant but it was not personal information. It was also clearly open to the Authority to find that the article could have been provided to the delegate, having been published months before the delegate’s decision. Neither was the applicant able to point to any exceptional circumstances.
The applicant contends the Authority failed to take into account all matters constituting exceptional circumstances in finding it was not satisfied there were exceptional circumstances to justify considering the article.
The applicant (by his representative) provided the following explanation as to why there were exceptional circumstances to justify considering the article:[45]
This article was published closed (sic) to the SHEV interview and on that basis, could not have been provided to the delegate. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We state that this is an exceptional circumstance especially when a person’s life is at risk. …
[45] CB 269
The Authority explicitly considered the applicant's explanation and made a number of observations in respect of the applicant receiving assistance to prepare his SHEV application, being represented at the SHEV interview, being given numerous opportunities and being told the importance of providing all information to the Minister’s Department. The Authority was not persuaded by the applicant's submission, observing the article was dated 12 February 2017 and was “not published in the days before the SHEV interview” (on 27 March 2017). The Authority stated that the applicant had not satisfied it the article could not have been provided to the delegate before her decision was made, that it was credible personal information or that had it been known it would have affected the consideration of his claims. The Authority was also not satisfied exceptional circumstances existed to justify considering the article.[46] The applicant has not identified any fact or matter materially bearing upon the Authority's consideration of whether exceptional circumstances existed that was not taken into account.[47] The Authority did not otherwise misconstrue or misapply the phrase exceptional circumstances.[48]
[46] CB 282 [6]
[47] AQU17 v Minister for Immigration [2018] FCAFC 111 at [17]
[48] cf CHF16 at [44]
Ground 2
By this ground, the applicant contends that the Authority engaged in an illogical process of reasoning in respect of an article from the Tamil News Portal dated 17 February 2016. I reject that contention.
The applicant had provided the article along with a translation to the Minister’s Department in support of his claim that the SLP wanted to arrest him because he had weapons (as told to him by his uncle).
The Authority considered the translation of the article, which stated that a large cache of weapons had been recovered in Batticaloa, that police had been informed that a large cache of weapons had been recovered from a named village after being buried in a garden and that investigations were continuing. The Authority went on to consider that the article appeared undated in the translation, was general in nature and made no mention of the applicant. The Authority stated that it was not satisfied the article had any connection to the applicant and for these reasons, it placed little weight on it.[49]
[49] CB 285 [15]
The Authority was entitled to place reliance upon the various reasons expressed, including because the article made no mention of the applicant, as to why it ultimately placed little weight on the evidence. The Authority committed no error in reasoning and its finding in respect of the article was open to it.[50] Further, it is accepted that probative evidence can give rise to different processes of reasoning and reasonable minds might differ in respect of the conclusions to be drawn from evidence. As stated by the High Court, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[51]
[50] cf Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [72]
[51] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131]
Grounds 3, 5 and 6 – did the Authority adequately consider the applicant’s claims?
I prefer the Minister’s submissions in relation to these grounds.
Grounds 3 and 5 contend that the Authority failed to make findings in respect of the applicant's claims that:
a)the Pilliyan group sent a warning through his uncle that they would kill him if he did not come and see them (Ground 3); and
b)he feared abduction by white vans (Ground 5).
Ground 6 alleges the Authority “misunderstood or misapprehended” the arrest warrant claim.
These grounds fail on the facts. The Authority did not accept any of the events claimed to have occurred after the applicant voted in September 2012, including the incidents involving the Pilliyan group. The Authority specifically rejected the applicant's claims that the Pilliyan group attended his home on a number of occasions, suspected him of being a LTTE cadre and accused him of possessing arms.[52] Contrary to the applicant’s submission, the Authority was not required to make a “dispositive determination” as to the existence of documentary evidence.
[52] CB 284 [14]-[16]
The Authority also specifically rejected the applicant's claim that he was approached by persons in the Pilliyan group, beaten and taken to their van.[53] The Authority was not satisfied the applicant suffered any harm due to his minor support and for voting for the TNA, or that he had a profile that would have attracted the attention of the Sri Lankan authorities or anyone else.[54] The Authority went on to discount the applicants fear of harm due to his support for the TNA on return:[55]
Given the minor level of the applicant’s involvement with the TNA, the length of time that has elapsed since the events of 2012 and the country information indicating that the political landscape has changed considerably since the applicant has left Sri Lanka, I consider that the applicant does not face [a] real chance of serious harm on this basis if he returned to Sri Lanka.
[53] CB 284 [13]
[54] CB 286 [23]
[55] CB 288 [27]
The Authority’s specific rejection of the incidents involving the Pilliyan group and its assessment that the applicant did not face a real chance of serious harm on return due to his (minor) involvement with the TNA sufficiently disposed of the applicant's claim to fear abduction by white vans.
As to Ground 6, in recounting the applicant's claims as made to the delegate, the Authority observed the applicant had previously said his uncle was given an arrest warrant by the police or that the police delivered the arrest warrant to his uncle. The applicant says the Authority was mistaken in that the arrest warrant was not served on his uncle. It is unclear how the applicant says the Authority “misunderstood or misapprehended” the arrest warrant claim such that the decision is affected by jurisdictional error. Insofar as the Authority erred in observing the arrest warrant was given or delivered to the uncle, it made no subsequent adverse finding, for example, that the applicant did not provide a copy of the arrest warrant in support of his claims. The applicant has not discharged the onus of proving materiality of the Authority's mistake (if any).[56]
[56] Minister for Immigration v SZMTA (2019) 93 ALJR 252; [2019] HCA 3
If the Authority was in error in stating that at his protection visa interview, the applicant said that his uncle was given an arrest warrant by the police, that would also not be material. At a minimum, the delegate’s decision at CB 237 makes clear that the applicant claimed his uncle was aware of the arrest warrant because it had been shown to him when the police came to arrest the applicant. There was nothing in relation to the uncle’s claimed inability to provide any further information in the form of a written statement that was an exceptional circumstance.
Conclusion
The applicant is unable to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 August 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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Jurisdiction
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Procedural Fairness
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Statutory Construction
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