CSN18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1914

(a) failing to consider relevant considerations when making a determination under s 91W of the Migration Act; and

(b) failing to provide natural justice to the applicant before applying s 91W.

1. For the reasons explained below, the applicant has not established that the Authority made a jurisdictional error. His application to this Court is therefore dismissed.

1. The applicant entered Australia in May 2013 and is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act.
2. The applicant applied for a protection visa on 2 August 2016. In his protection visa application, he claimed that he was born in India and, when asked to identify his nationality, he responded 'not sure'. The applicant provided a statement with his protection visa application in which he claimed he could not return to India as he does not have any right to live there. He further claimed to fear that, if he was returned to Sri Lanka, he would be seriously harmed by the Sri Lankan authorities due to his Tamil ethnicity, being a suspected Liberation Tigers of Tamil Eelam (LTTE) member or supporter, leaving Sri Lanka unlawfully and having no proof of his identity or right to enter Sri Lanka.
3. On 11 August 2016 an officer of the Minister's Department wrote to the applicant requesting, pursuant to s 91W(1) of the Migration Act, that he provide evidence of his identity, nationality or citizenship. In response, the applicant's migration agent emailed the Minister's Department on 29 November 2016 indicating that the applicant has never been issued identity documents from any country.
4. In an email sent to the Minister's Department on 24 November 2017, the applicant's migration agent indicated that the applicant was speaking with his sister and extended family to see if they could find any documents in relation to him.
5. On 29 November 2017 the applicant attended an interview with an officer of the Minister's Department to discuss his claims for protection (protection visa interview). Following the protection visa interview the applicant's agent provided post-interview submissions on 14 December 2017.
6. On 12 April 2018 a delegate of the Minister refused to grant the applicant a protection visa. The delegate found that the applicant was a national of India and assessed his claims for protection against India. The delegate was not satisfied that the applicant met the criteria in s 36(2)(a) or (aa) of the Migration Act for the grant of the protection visa.
7. Pursuant to s 473CA of the Migration Act, the matter was referred to the Authority for review.
8. On 26 April 2018 the applicant provided an email to the Authority which contained some new information.
9. On 10 May 2018 the Authority affirmed the delegate's decision not to grant the applicant a protection visa.

1. The Authority was not satisfied that the requirements of s 473DD of the Migration Act were met in respect of the new information provided by the applicant and therefore did not consider that information.
2. The Authority found that the applicant was born in India and this his mother was an Indian citizen. The Authority considered that the applicant was an Indian national and did not accept that he was stateless or Sri Lankan. The Tribunal therefore considered that India was the receiving country and did not consider the applicant's claims against Sri Lanka.
3. The applicant's evidence was that he had lived in an orphanage for five years in India. The Authority considered that, if the applicant's evidence was that his family took him to live at an orphanage for five years, then there would have been some documentation identifying the applicant. The Authority further considered the applicant's evidence that his sister took him out of the orphanage when he was 14 years old and completed paperwork to do this. The Authority therefore considered that there would have been documentation identifying the applicant and his sister and their relationship. Whilst it may have been difficult for the applicant to obtain identity documentation because his mother had died and his father had remarried, the Authority considered the applicant could have taken steps to obtain documentation from the orphanage and other family members.
4. The Authority did not accept that the applicant could not obtain documentation to verify his identity or that he would be returning without documentation. The Authority did not accept the applicant would face any harm upon return to India due to limited or lack of documentation.
5. The Authority considered the applicant's circumstances as a Tamil with limited documentation and as a returnee from Australia. The Authority did not accept that the applicant does not have education or skills to gain employment. The Authority did not accept that the applicant has not been educated as he noted in his application that he can speak, read and write Tamil. It was evident that the applicant has been able to find gainful employment previously in India, including as a minor. The Authority considered that the applicant has further maturity, experience, skills and language which will assist him in gaining employment upon return to India.
6. The Authority considered that the applicant was supported by his family in India and his siblings and other relatives continue to live in India. The Authority did not accept the applicant's claims that he was treated like a slave by one of his sisters and beaten, as it was not referred to in his written statement and was at odds with his evidence that he was in weekly contact with his sister. The Authority considered the applicant was embellishing his claims and did not accept he could not seek his sister's assistance upon return, if needed. Further, the Authority noted that the applicant is now an adult and better able to care for himself.
7. The Authority acknowledged country information which indicated that there was a low level of official discrimination in India on the basis of ethnicity and language and a moderate level of societal discrimination in areas such as jobs and housing. The Authority did not accept that the applicant, even as a Tamil who speaks Tamil, would face a real chance of poverty, or not being able to find employment or accommodation or not being able to survive upon return to India. The Authority was not satisfied that the applicant would face a real chance of discrimination or other harm as a result of his background and circumstances.
8. The Authority accepted the applicant departed India without documentation and accepted that the applicant may face delays in obtaining a passport because of difficulties with his current lack of documentation. The Authority relied on country information published by the Department of Foreign Affairs and Trade, which indicated that there were no known credible reports of mistreatment of returnees by Indian authorities. The Authority did not accept the applicant would be of adverse interest to authorities or that he would face any harm upon return because of his illegal departure or as a failed asylum seeker from Australia.
9. The Authority did not accept the applicant would face a real chance of persecution in India for any of the reasons in s 5J(1)(a) of the Migration Act. The applicant therefore did not meet the refugee criterion in s 36(2)(a) of the Migration Act.
10. On the same factual findings, the Authority was not satisfied the applicant would face a real risk of significant harm if removed to India. Therefore, the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration.
11. While not necessary to make any findings, the Authority did not accept that the applicant could not have provided documentation or taken reasonable steps to obtain documentation to verify his identity. The Authority did not accept that the applicant had provided a reasonable explanation for failing to comply with the request of the Department to provide identity documents and considered s 91W of the Migration Act applied to the applicant.

1. The application for judicial review was filed on 25 May 2018. The application was made within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
2. The application as originally filed contains the following three grounds:

1. The Immigration Assessment Authority ignored relevant considerations;

1. The Immigration Assessment Authority failed to properly consider all of my claims; and
2. The Immigration Assessment Authority didn't give me an opportunity to comment on an issue that was in dispute.

1. The applicant did not file any amended application or submissions ahead of the hearing, despite having the opportunity to do so. I made an Order at the hearing, giving the applicant a further opportunity to file written submissions.
2. In his written submissions filed after the hearing, the applicant raised the following two additional grounds:
   1. The Immigration Assessment Authority's determination under s 91W is wrong because it failed to consider relevant consideration

Particulars

1. It failed to consider the applicant's application for an Indian passport. (Court Book 3-7)

b. Applicant's submission of form 1022 (Court Book 9-11)

1. Email Correspondence of the Case Manager of the Department of Immigration Ms Alicia (Court Book 14-16)

   1. Applicant's representative from RACS's email dated 29 November 2016 (Court Book 98-98)

2. The IAA failed to provide natural justice opportunity to the applicant before considering applying s 91W of the Migration Act.

Particulars

1. The delegate of the Minister has accepted that applicant has provided reasonable explanation for failure to comply with s 91 W(1) request and concluded that s 91W will not be applied.
2. S 91 W (1) of the Migration Act 1958 provided:

(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.

S 91 W (2) of the MA states that if the applicant failed to provide or failed to provide reasonable explanation only the Minister must refuse applicant's protection visa.

In the present case, since the Department of Home Affairs accepted applicant's reasonable explanation and, in that case, if the IAA decided to apply s 91 W, it should have provided natural justice opportunity under s 91 W (1) of the Migration Act before applying s 91 W.

Based on that it is submitted that the IAA committed a legal error and thereby the IAA decision should be set aside.

1. Both parties filed written submissions addressing these grounds. The Court also convened a further hearing to allow the parties to make oral submissions on the new grounds.
2. The evidence before the Court comprises:

(a) the court book filed on behalf of the Minister on 8 August 2019; and

(b) the affidavit filed by the applicant with his judicial review application.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT), where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

Did the Authority ignore relevant considerations or fail to consider the applicant's claims?

1. The applicant's first ground, as set out in his judicial review application, asserts that the Authority made a jurisdictional error by ignoring relevant considerations. By his second ground, the applicant asserts that the Authority did not properly consider his claims. Taking into account the way in which the applicant presented his oral submissions, these grounds raise similar issues and it is convenient to address them together.
2. The Authority may have made a jurisdictional error if it failed take into account a relevant consideration that it was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15]. The Authority was required to consider all claims for protection expressly articulated by the applicant and their component integers: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]. The Authority was also required to consider claims which were not expressly articulated by the applicant, but which clearly emerged on the material before the Authority based on established facts: AYY17 at [18]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]. A failure to consider a claim expressly advanced by the applicant or one which clearly emerged on the material before the Authority can amount to jurisdictional error. Likewise, it can amount to jurisdictional error if the Authority failed to have regard to evidence, depending on the importance of that evidence to the Authority's decision: Minister for Immigration v Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111].
3. The applicant did not identify in his application what relevant consideration, claim or evidence the Authority failed to consider. The applicant was given an opportunity at the hearing to present oral submissions to better explain his grounds of application. The applicant submitted that:

(a) from his childhood, he did not have any identification;

(b) from when he was small, he grew up without parents, did not have proper relations and had experienced torture;

(c) he did not have support and was hurt at that time but the Authority said that kind of harm would not have happened to him;

(d) when he attended his interview, he was only 18 or 19 years old and was afraid of immigration or police, he was given a lawyer and whatever question the applicant was asked, he said 'yes, yes, yes' and did not know how to answer the questions in the interview at that time;

(e) it was only after he came to Australia, had a home, went to school and knew that if someone hit him, there was someone to question about that, or someone to support him in how to survive and to study, that he became a normal person;

(f) the Authority wrongly assumed that the applicant was an Indian citizen, but he does not have Indian identifying documents and only had identification documents once he came to Australia;

(g) he let the Authority know that his brother passed away when he came here, but the Authority assumed that he is lying about that and they assumed that whatever information he give them after that is incorrect information;

(h) when he stayed in the orphanage in India, stateless orphans would face police violence and exploitation and mistreatment, but the Authority did not consider any of the issues that he faced;

(i) because he did not have any identification, he had a lot of difficulties in India and whenever he could not go to school and whenever he saw the police he was scared and would run away from the police;

(j) he was young when he got beaten and this happened many times but he did not know how to tell these things at the interview and he knows what to tell now;

(k) if he goes back to his country he will be stateless and, after having lived in Australia for 13 years, he is scared to go back to his country because he does know what will happen and does not have a house;

(l) he has a house in Australia and this is the country who has provided everything for him;

(m) if he is stateless he will qualify for protection under Australian law;

(n) he was speaking Tamil, but they said he was not a Tamil; and

(o) he mentioned at the interview that he heard his grandmother say that his father came as a refugee to India from Sri Lanka, but they said his family was not found to be refugees.

Matters relating to the merits and/or evidence that was not before the Authority

1. Some of these matters relate to the merits of the Authority decision or whether the applicant meets the criteria for the grant of a protection visa. The Court does not have the power to consider for itself whether the applicant meets the criteria for the grant of a protection visa and cannot conduct merits review of the Authority decision. To the extent that the applicant's submissions are properly understood as addressing the merits, they do not establish jurisdictional error.
2. Likewise, the applicant's assertions that he would be in a better position to present his evidence now and that he did not present some evidence at the interview (by which I infer the applicant was referring to his protection visa interview) do not establish jurisdictional error in the Authority decision. The assessment of whether the Authority made a jurisdictional error needs to take into account the state of affairs that existed at the time of the Authority decision and the evidence that was before the Authority: Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28].

Matters relating to the applicant's circumstances in Australia

1. Some of the matters raised by the applicant relate to his circumstances in Australia and how his circumstances in Australia are better than his circumstances in India. The Authority, in considering whether the applicant met the criteria for the grant of a protection visa, was required to assess whether the applicant had a well-founded fear of persecution or would face a real risk of significant harm if he were returned to the receiving country, which, in this case, the Authority found was India. This did not require any comparison of the applicant's circumstances in India and Australia. To the extent that the applicant referred to his circumstances in Australia, this was not something that Authority was required to take into account and therefore does not establish jurisdictional error.

Consideration of those matters that the applicant says were raised before the Authority

1. The other matters raised by the applicant require the Court to consider the claims that the applicant raised in the materials that were before the Authority and how the Authority addressed those matters in its reasons. The applicant relevantly presented his claims in the statement that accompanied his protection visa application, his submissions to the Department and in his oral evidence given at the protection visa interview. A transcript of the applicant's oral evidence given at the protection visa interview is not available to the Court. Therefore, I have had regard to the summary of the applicant's evidence as set out in the delegate's decision record and the references to evidence given at the protection visa interview that are recorded in the Authority's reasons for decision.

The applicant's claims based on nationality and lack of documentation

1. In his statement that accompanied his protection visa application, the applicant claimed that he had been born in India and lived his whole life in India before coming to Australia. The applicant claimed that because he did not have a lawful right to live in India, he evaded the police and other authorities whenever he saw them. The applicant claimed that, to his knowledge, he had never been issued with identity documents, travel documents or a birth certificate.
2. In his submission after the protection visa interview, the applicant claimed that he would face harm because he is stateless and has no evidence of his parentage or identity in either Sri Lanka or in India. He further claimed that as a result of his inability to obtain proof of his identity and nationality, neither the Sri Lankan nor Indian governments would accept him if he was forced to depart Australia.
3. I am satisfied that the Authority considered all relevant claims and evidence presented by the applicant.
4. The Authority carefully considered the applicant's claims in relation to his nationality and found that he was an Indian citizen and therefore not stateless or Sri Lankan. This was not based on an assumption, as submitted by the applicant, but rather was based on inferences drawn from the evidence before the Authority. The Authority was satisfied that the applicant's mother was an Indian citizen and had before it country information that indicated that the applicant would be an Indian citizen if one of his parents was an Indian citizen at the time of his birth. The Authority also had regard to all of the applicant's family members living in India and that the applicant's sister and brother-in-law, while initially claiming to be Sri Lankan, asked to be voluntarily returned to India and sought Indian travel documents.
5. The Authority considered the applicant's claims that he was unable to obtain documentation, but did not accept them. The Authority considered the applicant's claim to have been at an orphanage for five years and considered that if he had been taken there by his family is claimed, there would have been some documentation identifying the applicant. Further, the Authority noted that the applicant gave evidence that his sister came and took him from the orphanage when he was 14 and that she completed paperwork to do this. The Authority therefore considered that there must be documentation identifying the applicant and his sister and their relationship. The Authority did not consider that the applicant would not be able to obtain documentation to verify his identity or that he would be returning to India without identification documents.
6. The Authority did not accept that the applicant would face any harm upon return to India due to limited or lack of documentation. While the Authority did not expressly consider the applicant's claim that he would run away from police because did not have a lawful right to be in India, the Authority's finding that the applicant was an Indian national and would be able to obtain documentation effectively disposes of any claim that the applicant would need to evade police because of any lack of lawful status if he returned to India. I am satisfied that the Authority considered the applicant's claims that he did not have documents and that he would face a real risk of harm for this reason.
7. The Authority's finding that the applicant was an Indian citizen disposes of the applicant's claim to be stateless. For completeness, there is one further aspect of the applicant's submission to the Court which I address to assist the applicant's understanding of the issues. The applicant's submission that he would be entitled to protection if he was stateless is not a complete or accurate representation of the law. If the Authority had found that the applicant did not have a nationality, it would have been required to consider:

(a) for the purpose of the refugee criterion, whether the applicant was outside the country of his former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it: see s 5H(1)(b) of the Migration Act; and

(b) for the purposes of the complementary protection criterion, whether there was a real risk the applicant would suffer significant harm if returned to a 'receiving country', which, in the case of a person who has no country of nationality, is the country of the applicant's former habitual residence, whether or not it would be possible for him to be returned there: see s 36(2)(aa) of the Migration Act and the definition of 'receiving country' in s 5 of the Migration Act.

1. On the evidence before the Authority that the applicant was born in India and had spent his whole life there prior to coming to Australia, the Authority would have been required to assess the applicant's claims for protection on the basis that India was the receiving country even if it found the applicant was stateless.

The applicant's claims based on his family and lack of family support

1. The applicant claimed in the statement that accompanied the protection visa application that his mother passed away when he was two years old and his father left the family and remarried and the applicant has not had contact with his father since 2008. He claimed that after his mother passed away he was taken in by a cousin until he was four years old, then stayed with his grandmother until he was nine years old. When his grandmother passed away, he was taken in again by his cousin for eight months. He then went to an orphanage where he stayed from 2006 until 2011. He claimed that no one claimed responsibility for him and his relatives were not prepared to help and care for him except for two of his sisters. He lived with one sister from 2011 to 2012 and then moved in with another sister until he left India in 2013. The sister that he lived with prior to his departure from India would allow him to stay with her from periods of time when she was not fighting with her husband, but when they had fights, the applicant would roam the streets homeless.
2. In his submission to the Department after his protection visa interview, the applicant submitted that he would not be able to survive in India, including because he had grown up in India with limited support from extended family with whom he had no contact for many years prior to leaving India and was left in an orphanage to continue living without family support until one of his sisters came to pick him up and provided limited care.
3. The Authority considered the applicant's claims about his family circumstances. The Authority expressed the view at [31] of its reasons that the applicant was supported by his family in India. The Authority further expressed the view at [33] of its reasons that the applicant would be returning to India as an adult and better able to care for himself. The Authority considered that the applicant would be able to find employment and accommodation either with his relatives or on his own. These were the matters that were relevant to the assessment of whether the applicant met the criteria for the grant of a protection visa.
4. A further matter that the applicant mentioned in his submissions to the Court is that the Authority did not believe that the applicant's brother had passed away. The death of the applicant's brother was a matter that the applicant raised in an email to the Authority and which the Authority considered to be new information. The Authority was only able to consider new information if the requirements of s 473DD of the Migration Act were met. The Authority was not satisfied that the new information provided by the applicant met the requirements of s 473DD of the Migration Act and therefore did not consider the information in the review. The applicant has not asserted that there is any jurisdictional error in the finding in respect of s 473DD and there is no obvious jurisdictional error in that finding.
5. The Authority considered the applicant's evidence about his family to the extent that it was relevant to the determinative issues in the review.

The applicant's claims to have been tortured and harmed in his youth

1. The only evidence I have been able to locate and materials before the Court that might be relevant to this submission made at the hearing, is a reference by the Authority to a claim the applicant made in his protection visa interview that he was treated like a slave by one of his sisters and beaten. The Authority identified this claim and considered it at [32] of its reasons. The Authority did not accept the claim, noting that the applicant did not make any such claim in his written statement and considered that the applicant would have raised this claim earlier if it were true. The Authority further noted that the applicant was in weekly contact with his sister in India and this was at odds with his claims of harm. The Authority considered that the applicant would be able to seek assistance from his sister upon return to India if need be, noting that she had taken him in previously.
2. To the extent that the applicant claimed to have been harmed in his youth in India, the Authority considered the claim.

1. The applicant claimed in his protection visa application that he feared harm because of his Tamil ethnicity. He repeated this claim in his submissions to the Department.
2. The Authority accepted that the applicant was a Tamil and considered country information about the risk of harm to Tamils in India. The Authority accepted that there was a low level of official discrimination in the India on the basis of ethnicity and language and a moderate level of societal discrimination in areas such as jobs and housing which can vary. The Authority did not accept that the applicant, as a Tamil who speaks Tamil, would face a real chance of extreme poverty or living in slums, of being unable to find employment or housing or otherwise being harmed. Even with his prejudicial childhood, the applicant had been supported by his family and in an orphanage and had found employment in two different industries in India. The Authority considered the applicant had further education in Australia and has shown adaptability to living in different country. The Authority did not accept that the applicant would face a real chance of poverty, or would be unable to find employment or accommodation or be unable to survive, on return to India.
3. It can be seen from this that the Authority accepted the applicant's claim to be Tamil and took this into account in assessing his claims.

The applicant's claim regarding whether his father was a refugee

1. The evidence to which the applicant referred in his oral submissions, when he submitted that he mentioned at the protection interview that he heard his grandmother say that his father came as a refugee to India from Sri Lanka, was addressed by the Authority at [18]-[19] of its reasons:
   1. The applicant stated his grandmother had indicated his father was of Sri Lankan background, but he was doubtful about that and had never heard about a Sri Lankin connection while in India and had always thought he was a local Indian. He considered his grandmother's assertion hearsay. I note also that the applicant's grandmother passed away when he was 9 years old, so I consider the applicant's recall at that age or under about what his grandmother said to him may not be reliable or accurate. Given the applicant's age and his uncertainty about his grandmother's statement and the lack of other evidence that links the applicant to Sri Lanka, I do not accept the applicant's father was Sri Lankin or that the applicant is a Sri Lankin citizen.
   2. Further, while initially at interview he said his parents did not have records because they were refugees, he later was adamant that his parents were not refugees, but neither he nor his siblings had documents. I accept the applicant's parents were not refugees.
2. The Authority considered the evidence that the applicant gave and made findings that were open to it on the evidence. The applicant has not established that there was any evidence or claim in relation to his father being a refugee that the Authority failed to consider.

1. While not expressly raised by the applicant, I acknowledge that the Authority did not expressly address the specific claims of harm that the applicant made in respect of Sri Lanka. However, it was not required to do so, once it found that the applicant was an Indian citizen and that India was the receiving country. I accept the Minister's submission that it was open to the Authority to rely on its factual findings and country information as to the citizenship law of India to conclude that the applicant was an Indian citizen.

1. The applicant has not established that the Authority failed to consider his claims and their component integers, or his evidence in support of the claims.

Did the Authority make a jurisdictional error by failing to give the applicant an opportunity to comment on an issue in dispute?

1. There are again no particulars of this ground set out in his application. When invited to address this ground in his oral submissions, the applicant submitted that, at the time of the protection visa interview, he was not mature and was young and did not know how to reply to questions. Therefore 'they' might have misunderstood his answers. It may not have been the Authority's mistake but the way he told his answers may not have been correct. He would like the Minister to have a second look at his case because he experienced a lot of harm in India.
2. The Court cannot simply give the applicant a second opportunity to present his case. If the applicant establishes that the Authority made a jurisdictional error and remits the matter to the Administrative Review Tribunal for reconsideration, he may get a further opportunity to present evidence. However, the Court can only consider whether the Authority made a jurisdictional error.
3. As submitted by the Minister, the statutory scheme ordinarily requires the Authority to review a fast track reviewable decision without accepting or requesting new information and without inviting a referred applicant to attend an interview: s 473DB(1) of the Migration Act. The Authority does have a discretion, conferred by s 473DC of the Migration Act, to invite the applicant to provide new information, and that discretion must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [61], [80].
4. With the exception of the issues relating to s 91W of the Migration Act, which I address below, the applicant has not identified a specific issue in dispute in relation to which the Authority was required to afford him an opportunity to comment. The applicant's general desire to present his evidence again because he did not present his best case at the protection visa interview does not establish that the Authority failed to afford the applicant an opportunity to comment on an issue, or that it acted unreasonably in not inviting him to attend an interview. This is particularly so in circumstances where the applicant did not request any further interview or opportunity to comment and explain to the Authority why it was necessary.
5. For completeness, I note that the Authority did not consider any new information and so the obligation in s 473DE of the Migration Act did not arise. That provision, if it applied, would have required the Authority to provide to the applicant clear particulars of any new information that would be the reason, or part of the reason, for affirming the delegate's decision, and to invite the applicant to comment on the new information.
6. Ground 3 of the application is not established.

Is there any error in the Authority's approach to s 91W of the Migration Act?

Section 91W of the Migration Act and the Authority's reasoning

1. Section 91W of the Migration Act provides:

(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.

(2) The Minister must refuse to grant the protection visa to the applicant if:

(a) the applicant has been given a request under subsection (1); and

(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and

(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and

(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:

(i) refuses or fails to comply with the request; or

(ii) produces a bogus document in response to the request.

(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:

(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and

(b) either:

(i) produces documentary evidence of his or her identity, nationality or citizenship; or

(ii) has taken reasonable steps to produce such evidence.

(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.

1. On 11 August 2016 the Department made a request in writing, under s 91W(1) of the Migration Act, for the applicant to provide documentary evidence of his identity, nationality or citizenship. As indicated above, the applicant did not provide documents in response to this request.
2. The delegate accepted that the applicant had a reasonable explanation for his failure to comply with the s 91W(1) request. This finding was made taking into account 'the applicant's young age on arrival into Australia and claimed status in India'.
3. The Authority's reasoning in relation to s 91W was set out at [54]-[58] of its reasons:
   1. The delegate made a formal request for identity documents from the applicant. None were provided in response to that request.
   2. The applicant claimed he had no identity documents because he had not been issued with any and could not obtain any as he had no guidance from his parents, did not know what hospital he was born in, had lost contact with his father in 2008 (his mother died when he was 2), he lived with his grandmother and in an orphanage and his sisters did not have any documentation and could not help him.
   3. The delegate found that there was a reasonable explanation for the failure to provide documentary evidence of his identity, nationality or citizenship because of his young age on arrival in Australia and claimed status in India.
   4. While not necessary to make any findings given the above findings, I do not accept that the applicant could not have provided documentation or taken reasonable steps to obtain documentation from for instance the orphanage, where he resided for 5 years, or from his former employers or statements from his family verifying his identity. The applicant is no longer a minor and has siblings in India, one of whom is in contact with weekly. I do not accept he has provided a reasonable explanation for failing to comply with the request.

58. I consider Section 91W applies to the applicant.

Did the Authority fail to take into account a relevant consideration in making a finding for the purposes of s 91W of the Migration Act?

1. The applicant submitted that the Authority made a jurisdictional error because it failed to consider certain documents when making its findings for the purposes of s 91W of the Migration Act. The documents that the applicant submitted the Authority failed to consider are:

(a) an application for an Indian passport, which was prepared in the context of a request for removal made by the applicant which was subsequently withdrawn;

(b) a Form 1022 which the applicant completed to give notification of a change in circumstances, including that he was born in India, not Sri Lanka, and to correct his date of birth regarding an update to circumstances;

(c) an email from the case manager of the Department, which relevantly confirmed that the applicant had withdrawn his request for removal; and

(d) an email from his former migration agent to the Department sent on 29 November 2016, which indicated that the applicant had instructed the agent that he had never been issued with identity documents from any country.

1. The Minister submitted that this ground fails because the Authority expressly recorded that it had regard to the review material and because the Authority expressly referred at [55] to the applicant's reasons for not providing documents, which is what the email of 29 November 2016 canvasses. Further, the Minister submitted that the application for a passport, the Form 1022 and the Departmental email correspondence all arose in the context of a withdrawn request for removal and it is not clear that a passport application was in fact made. Rather, it appears that the applicant did not make the passport application despite completing the form. The Minister submitted that the documents identified by the applicant were of limited significance in determining whether the applicant had taken reasonable steps to obtain identity documents and that the Authority's finding that the applicant had not provided a reasonable explanation for failing to produce identity documents was not based on a failure to apply for a passport.
2. I accept the Minister's submissions in relation to this new ground. The determinative issue in relation to the Authority's findings for the purposes of s 91W of the Migration Act was that the applicant did not have a reasonable explanation for failing to comply with the Department's request that he provide documentary evidence of his identity, nationality or citizenship. The information in the email from the applicant's migration agent was captured, together with other information, in the Authority's reasons at [55] and was therefore considered. The passport application, without evidence that it was submitted to the Indian authorities, does not in any way explain why the applicant failed to provide identity documents to the Department. The Form 1022 and the email correspondence regarding the applicant's withdrawn request for removal do not in any way address why the applicant did not provide identity documents to the Department in response to the request.
3. The first ground raised in the applicant's submissions is not established.

Did the Authority fail to afford the applicant procedural fairness, or act unreasonably, in failing to invite him to comment prior to making a finding for the purposes of s 91W of the Migration Act?

1. The applicant submitted that in circumstances where the delegate accepted that the applicant had a reasonable explanation for failing to provide documents in response to the s 91W(1) request, the Authority was required to afford natural justice to the applicant before applying s 91W of the Migration Act. The applicant submitted that the Authority had an obligation to follow the legal provision in s 91W and to comply with procedural fairness. The applicant submitted that he had a legitimate expectation that the Authority would be obliged to provide a natural justice opportunity to the applicant before deciding the matter, and it is an essential requirement that a party know in advance the issues to be decided by the Authority and be given a fair opportunity to present a case.
2. The Minister submitted that Division 3 of Part 7AA of the Migration Act sets out an exhaustive code of the natural justice hearing rule requirements. The Minister's interpreted the applicant's assertion that he was denied natural justice because he was not aware of the issues to be decided by the Authority as arising on the basis that the delegate made a different finding about the application of s 91W of the Migration Act. The Minister submitted that no denial of natural justice arises from the mere fact that the Authority made different findings to those made by the delegate on the limited merits review available under the fast track scheme. The Minister further submitted that the applicant has not identified what practical injustice attached to any failure to afford him procedural fairness, given that he knew when his matter was before the delegate that if he was unable to provide documentation, then he would be required to provide a reasonable explanation.
3. In my view, the Authority did not deny the applicant procedural fairness in relation to its findings for the purposes of s 91W of the Migration Act.
4. Section 473DA of the Migration Act provides that Division 3 of Part 7AA, together with two further provisions which are not relevant to this application, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. There is no provision in Division 3 of Part 7AA that required the Authority to invite the applicant to comment before it made any finding different to those made by the delegate. In these circumstances, I cannot find that the Authority denied the applicant procedural fairness.
5. The Minister in his submissions also addressed whether the Authority acted unreasonably in failing to invite the applicant to comment on its proposed findings for the purposes of s 91W of the Migration Act.
6. The Authority had a discretion conferred by s 473DC of the Migration Act to get new information that was relevant to the review. As discussed above, it was required to exercise its discretionary powers reasonably.
7. The Minister submitted that it was not unreasonable for the Authority not to exercise its discretion in s 473DC of the Migration Act.
8. The Minister submitted that in assessing unreasonableness, it is appropriate to consider the statutory scheme that provides for a limited form of merits review, with the Authority ordinarily required to review the matter on the material before the delegate. The Authority is entitled to reach a different conclusion to the delegate on that material and is under no duty to get or consider further information.
9. The Minister further submitted that the applicant had been informed of the potential consequences of s 91W, including that he would need to show that he had taken reasonable steps to obtain documents. The Minister submitted that the Authority appeared to have evidence before it that the applicant had not provided or sought any documentation from the orphanage and the orphanage had documents identifying the applicant. The Minister submitted that there was no apparent informational gap as between the delegate and the Authority and the Authority's departure from the delegate's findings was based on a different view of what steps the applicant could have taken to obtain further information. The Minister submitted that there was therefore a rational basis to not invite the applicant to comment and also to find that the applicant could have taken steps to obtain documentation from the orphanage but had failed to do so, and therefore that he did not have a reasonable explanation for not providing identity documents.
10. In all the circumstances, I find that the Authority did not act unreasonably in failing to invite the applicant to provide further information for the purposes of s 91W of the Migration Act. The applicant was put on notice of the possible consequences of failing to provide documents in accordance with the s 91W(1) request, without reasonable explanation, when that request was made on 11 August 2016. The applicant had the opportunity to explain why he did not provide documents in the response to the request sent on 29 November 2016, in the email from his migration agent to the Department on 24 November 2017, at his protection visa interview and in his post interview submissions dated 11 December 2017. There is no evidence before the Court that the applicant did not have an opportunity to fully explain, when his matter was before the Department, his reasons for not providing documents in response to the s 91W(1) request. This is not a matter where a new issue arose before the Authority or where the applicant did not have an opportunity to fully present his evidence before the Department: see, for example, Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210; DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43.
11. The Authority made its finding based on the same material that was before the delegate, but formed a different view to the delegate about the steps it would have been reasonable for the applicant to take to obtain documentary evidence of his identity. The Authority was not required to notify the applicant that it was considering taking a different view of the material considered by the delegate or to afford the applicant of specific reservations about his case and invite him to comment: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72]- [76]. There is nothing in the Authority's reasons to suggest that the Authority's findings in respect of s 91W were based on the applicant's demeanour and therefore the type of informational gap discussed in ABT17 did not arise in this case.
12. Taking into account the previous opportunities the applicant had to address the reasons for not providing documents, the limited form of merits review that the Authority was required to conduct under the provisions in Part 7AA of the Migration Act and the basis of the Authority's findings in respect of s 91W of the Migration Act, the Authority was not required, in the reasonable exercise of its discretionary powers, to invite the applicant to further address s 91W of the Migration Act.

1. The Minister also submitted that, even if the Authority acted unreasonably in failing to invite the applicant to comment on whether he had attempted to obtain documents, such that the application of s 91W is affected by error, the error was not material, because the Authority had otherwise considered and rejected the applicant's claims for protection.
2. Given my findings above, it is unnecessary to consider materiality. However, if it arose, I would have accepted the Minister's submission that any error by the Authority in relation to s 91W was not material. Any error in the Authority's approach to s 91W could not realistically have deprived the applicant of the possibility of a successful outcome (see, for example, LPDT at [7], [14], [16]) in circumstances where the Authority had an independent basis for rejecting the applicant's claims, namely, that he did not meet the requirements of s 36 of the Migration Act.
3. I accept the Minister's submission that the applicant's claim to fear harm on the basis of his claimed inability to obtain documents because he was stateless, and the Authority's finding that he was an Indian citizen and would be able to obtain documents, was a separate issue to that which arose in relation to s 91W of the Migration Act. The s 91W issue related to the steps the applicant had taken to obtain documents and whether his explanation for failing to provide documents was reasonable.

1. The applicant has not established that the Authority made a jurisdictional error. His application for judicial review must therefore be dismissed.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Immigration Assessment Authority are to the Authority as it existed at the time the applicant's matter was before it for review.