ABE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application for extension of time and leave to appeal filed on 12 August 2021 be refused.
2. The applicant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 By an application for extension of time and leave to appeal filed on 12 August 2021, the applicant seeks to appeal from the judgment of the primary judge in ABE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 386, in which the judge ordered that the applicant's reinstatement application filed on 19 June 2019 be dismissed. 2 For the reasons that follow, the application must be dismissed. 3 Before turning to the circumstances in which the need for this application arose, and dealing with the parties' respective submissions, at the hearing on 24 November 2021, counsel for the applicant, Dr S Churches, sought leave to adduce fresh evidence pursuant to r 36.57 of the Federal Court Rules 2011 (Cth). That evidence was a psychological report by Mr Richard Balfour, Clinical Psychologist, dated 23 June 2021, which in substance said that the applicant has "developed a psychological condition called 'learned helplessness', which results in sufferers 'losing the ability to assist themselves'". The Minister accepted that the applicant should be able to rely on that evidence in support of his application for an extension of time, but not to support any proposition that the learned primary judge relevantly erred. Dr Churches accepted that the evidence was only being tendered for the first purpose, and the report of Mr Balfour was admitted into evidence accordingly. 4 I should also mention the proposed grounds of appeal. On 28 October 2021, the applicant filed (or attempted to file) an amended notice of appeal. The Minister's written submissions were directed to that document. However, at the hearing, counsel for the applicant did not seek to rely on that document, but instead relied on grounds set out in Mr Cifuentes' affidavit dated 9 August 2021 at [3] "for the purpose of an application for review of the decision of the IAA". The grounds were as follows: 3.1 Ground 1 The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) and (b)(ii) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering new information provided by the Applicant's representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been know, may have affected the Applicant's claim. Particulars (a) The IAA has not assessed the new information pertaining to an uncle's death notice ("the death notice") for "exceptional circumstances" as required by law, involving s473DD(b) factors providing context for an assessment of s473DD(a) "exceptional circumstances." (b) The IAA applied the incorrect test when considering whether the applicant met either of the criteria in s473DD(b)(i) or (ii) of the Migration Act 1958 (Cth), when it failed to consider the new information pertaining the death notice, for reasons not relevant to the assessing provision in the statute, namely because: (i) it found at [11]: 'the applicant has provided no other evidence showing that the officer pictured is in fact related to him, or to his parents or any other relatives'; (ii) it applied pre-conditions to the exercise of the power in [s]473DD(a) when it said of the applicant's failure to provide corroborative information of the death notice, that he had not '[…] given the IAA any explanation or indications as to how he came to be in possession of this notice nor why he had not provided it earlier, nor when he learned of its existence…' … 3.2 Ground 2 The IAA failed to consider the real risk of significant harm on account of aspects of the applicant's profile for the purposes of s36(2A), that it had accepted for the purpose of its assessment pursuant to s36(2). Particulars (a) The IAA accepted (at [55]) that 'as for social stigma and discrimination, I accept many Tamil returnees face difficulties re-integrating and finding suitable employment', however the second Respondent ultimately reached the conclusion that 'any discrimination he may face will be low-level and will not affect his ability to access basic necessities and services'. (b) For the purposes of its assessment of s36(2A) the IAA failed (at [61]) to consider the effect of the 'social stigma' in respect of the applicant's ability to 'reintegrat[e] and fin[d] suitable employment', that it had earlier accepted for the purposes of s36(2) in its assessment of whether the effect of this 'social stigma' constituted significant harm.