FEDERAL COURT OF AUSTRALIA

AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant applies for leave to appeal from a decision of the Federal Circuit Court of Australia. By that decision, the primary judge refused to set aside an order dismissing the applicant’s application for judicial review on the ground of non-appearance.

2    The applicant is a citizen of Egypt, who arrived in Australia on 28 March 2013 as an unauthorised maritime arrival. On 25 February 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV).

3    In support of that application, the applicant claimed that in 2010 he was the victim of a robbery and stabbing. He claimed that in 2012 people threw acid on his fiancée’s face, for which her family blamed him, causing him to move from his home town to Cairo to avoid harm. He claimed to fear returning to Egypt because he had not completed his compulsory military service. He also stated that there was no security in Egypt and that terrorist and religious groups operate in his area.

4    On 9 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a visa. The delegate’s decision was a fast track reviewable decision and was referred by the Minister to the Immigration Assessment Authority (IAA) for review.

THE IAA’S DECISION

5    On 23 December 2016, the IAA affirmed the decision under review.

6    The IAA accepted that the applicant was the victim of a robbery and stabbing. However, it found that it was a random and opportunistic incident at the shop where he was working. It was not for any of the grounds set out in s 5J(1)(a) of the Migration Act 1958 (Cth). The IAA found there was no credible evidence to suggest that even if the applicant were to again experience a criminal attack on return to Egypt that this would be for any of the reasons for persecution set out in s 5J(1)(a) of the Act.

7    The IAA accepted that the acid incident may have occurred, but had considerable doubt that the applicant’s fiancée’s family had any ongoing interest in him. In any event, the IAA found that the applicant lived safely in Cairo prior to his departure and concluded that any risk of persecution did not relate to all areas of the receiving country (see s 5J(1)(c) of the Act).

8    The IAA accepted he had outstanding military service. However, the applicant did not claim he would refuse to undertake his military service but that he feared punishment for not having completed it. The IAA found that any penalty the applicant would face would be the consequence of non-discriminatory ‘laws of general application’ and did not amount to persecution.

9    The IAA noted that the applicant did not make any claims that he was targeted by, or that he feared harm at the hands of, terrorist and religious groups.

10    In light of country information, the IAA also found that the applicant would not face harm as a failed asylum seeker.

11    For those reasons, the IAA found that the applicant did not meet the requirements of the definition of ‘refugee’ in s 5H(1) of the Act.

12    In the context of complementary protection, the IAA made specific findings addressing the applicant’s claims. In relation to the applicant’s claim that he was the victim of a robbery and stabbing, the IAA found that even if it were satisfied that the applicant would be subjected to significant harm as a result of a random criminal act on return to Egypt, the evidence before it did not support a finding that the applicant would be personally at a real risk of harm and that any risk that that he would face would be faced by the population generally. The IAA found that it would be reasonable for the applicant to relocate to another area, such as Cairo. The IAA found that any penalties the applicant may face on account of his outstanding military service did not amount to significant harm. For the same reasons expressed in relation to the refugee criteria, the IAA found that the applicant would not face harm at the hands of religious or terrorist groups or as a failed asylum seeker. For those reasons, the IAA found that the applicant did not satisfy the complementary protection criteria.

IN THE FEDERAL CIRCUIT COURT

13    The applicant sought judicial review, but failed to appear. His application was dismissed. He applied under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside the dismissal.

14    The applicant relied on an affidavit in relation to the failure to appear before the Federal Circuit Court saying he was sick on the day of hearing and was not in a position to attend the hearing. He attached a medical certificate issued on 22 June 2017 and based on information provided to the doctor on that date by the applicant. The medical certificate recorded:

Suffering from: Perianal pain with inflamed piles and epidoes [sic] of per rectal bleeding. He stated that his symptoms were severe over the last two weeks and he was not able to attend for an interview on 14/06/2017.

15    The primary judge said (at [4]-[5]):

4.    The note from the doctor in the affidavit said the symptoms were severe over the last two weeks and the applicant was not able to attend for “an interview” on 14 June 2017. It was not apparent that the applicant informed the doctor that he was required to attend a hearing before the Court. Nor does the doctor in any way identify that the applicant was unable to attend Court or unable to contact the Court by telephone or to communicate with the first respondent. The first respondent has submitted that the explanation by the applicant for the failure to appear is not an adequate excuse. I accept the first respondent’s submission.

5.    The evidence from the applicant as to the failure to appear is one in respect of which the medical certificate falls a long way short of explaining why it was the applicant did not attend Court on that occasion. Be that as it may, the more important issue in the present case are the merits and whether the applicant has an arguable case of jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

16    His Honour continued (at [6]-[10]):

6.    At the commencement of the hearing the Court explained to the applicant that this was a hearing of an application in a case to determine whether the orders of the Court should be set aside.

7.    The Court explained to the applicant in that regard that the Court was considering, first, the reason why the applicant failed to attend before the Court and whether it was subject to a satisfactory excuse; and, second, whether the applicant had a reasonably arguable case on the merits so that there is utility in the setting aside of the order. The Court explained that this involved considering whether the applicant had a reasonable argument that the [IAA’s] decision was affected by relevant legal error.

8.    The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonable argument that the [IAA’s] decision was unlawful or unfair. The Court explained that, if satisfied the applicant had a reasonable argument that the [IAA’s] decision was unlawful or unfair and an adequate explanation for the failure to appear before the Court, the matter would be stood over and fixed for hearing on another occasion.

9.    The Court explained that, if not satisfied that the applicant had a reasonable explanation for the failure to appear and a reasonable argument that the [IAA’s] decision was unlawful or unfair, the application would be dismissed with costs.

10.    The Court explained that it would identify the evidence and then hear submissions from the applicant as to his excuse for failing to appear before the Court and as to why he has a reasonable argument on the merits, and then hear from the solicitor for the first respondent and then hear from the applicant in reply. The applicant confirmed that he understood the nature of the hearing before the Court.

17    The primary judge then went on to consider in detail the strengths of the applicant’s claims as they were put, but are now abandoned. The primary judge rejected the argument then put. He did not examine whether there had been any delay on the part of the applicant or prejudice to the Minister if the application were granted.

GROUNDS OF APPEAL IN THE AMENDED DRAFT NOTICE OF APPEAL

18    Through counsel the following grounds are raised:

1.    The primary judge erred in dismissing the applicant’s application in a case filed on 26 June 2017 by incorrectly identifying and applying the principles relevant to the Federal Circuit Court’s discretion to set aside an order made in the absence of a party.

Particulars

(a)    The primary judge failed to consider the applicant’s lack of delay in making the application to set aside orders made in his absence.

(b)    The primary judge failed to consider whether the [Minister] would be prejudiced by a new hearing in any respect which could not be adequately compensated for by a suitable costs order.

(c)    The primary judge failed to weigh the issues of delay and prejudice to the [Minister] against the assessment of the merits of the substantive application.

2.    The primary judge erred in dismissing the applicant’s application in a case filed on 26 June 2017 by falling to find that the applicant has an arguable case on the merits of the substantive application.

Particulars

(a)    The appellant has an arguable case that the [IAA’s] decision is affected by jurisdictional error because the [IAA] made findings about the reasonableness of relocation without information on the [applicant’s] particular circumstances relevant to that issue, and because the [IAA] did not consider whether to exercise its discretion to get new information from the [applicant] under s 473DC(3) of the [Act] for the purpose of enabling it to consider the reasonableness of relocation in the appellant’s particular circumstances.

ARGUMENTS IN SUPPORT OF THE APPLICATION

19    Relying upon Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398-399), the applicant contends a grant of leave to appeal is warranted as the Federal Circuit Court’s decision is attended with sufficient doubt because the primary judge erred by incorrectly applying the principles relevant to that Court’s discretion to set aside an order made in the absence of a party. In particular, it is said his Honour overstated the primacy of the merits of the substantive application for judicial review without referring to or weighing the issue of delay (or lack thereof) in bringing the application and the issue of prejudice to the Minister if the orders made were set aside. Further, substantial injustice is said would result if leave to appeal is refused because the applicant has an arguable case on the merits of his application for judicial review.

20    The applicant relies on SZUFS v Minister for Immigration and Border Protection (No. 2) [2015] FCCA 545, where Judge Driver (at [14]) restated the principles applicable to the Federal Circuit Court’s power to set aside an order made in the absence of a party as follows:

(a)    whether there is an adequate reason for the non-appearance;

(b)    whether there is no delay in making the application to set aside;

(c)    whether the party, in whose favour orders have been made, would be prejudiced by a new hearing in any respect which could not be adequately compensated for by a suitable award of costs or by the giving of security for costs; and

(d)    whether there is an arguable case on the merits of the substantive application.

21    The applicant contends that the primary judge in this case misstated the applicable principles by omitting any reference to delay in bringing the application and prejudice to the Minister. His Honour stated that, aside from the applicant’s excuse for non-appearance, ‘the more important issue in the present case are the merits’. The applicant contends that although the merits were undoubtedly important in determining how the Federal Circuit Court should have exercised its discretion, it was one factor that needed to be weighed against the other three identified in the authorities. By not identifying the relevant principles and by not weighing the relevant considerations against each other as required, it is said the primary judge erred.

22    The applicant then deals with the merits, referring to the IAA’s finding (at [34]) of its decision that it had ‘considerable doubt’ about the applicant’s claims concerning an ongoing risk of harm to the applicant from his fiancée’s family in relation to the acid attack. However, the balance of the IAA’s reasoning (at [34]), the applicant says, indicates that it could not express its findings ‘without any real doubt about the risk of harm’. Therefore, the applicant says, as required by the principle in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (at [63]), the IAA engaged in the ‘reasonable speculation’ required of it by considering the counter-factual of the applicant’s claim on the basis that it did accept a risk of harm from the fiancée’s family. The IAA (at [34]) said that:

… even if I were to accept that the applicant faces a risk of being harmed by the family of his fiancée in his home area, I am not satisfied that the risk of harm relates to the whole of Egypt and I consider that it would be reasonable for the applicant to relocate to another area, such as Cairo, where he lived for over twelve months before coming to Australia.

23    Therefore, the applicant says that the IAA’s finding, that there would be no risk of harm to the applicant if returned to Egypt, relied in part on its finding about the reasonableness of relocation.

24    The applicant’s argument is that reliance on the relocation principle in the present case was a jurisdictional error because the issue of relocation to Cairo or elsewhere was not canvassed at all with the applicant by the delegate or at any stage. There was no finding by the delegate about the reasonableness of relocation to Cairo or another area. Any mention of Cairo in the delegate’s decision is said only to record, as a matter of fact, that the applicant lived there for a period.

25    The applicant relies on Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, where the Full Court (Robertson, Murphy and Kerr JJ) relevantly said (at [82]):

... The failure to consider the exercise of that discretionary power [under s 473DC(3)] lacks an evident and intelligible justification in circumstances where the IAA knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The IAA did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The IAA’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the IAA under s 473CC miscarried for jurisdictional error.

26    The applicant argues that the reasoning in CRY16 applies in this case. Therefore, it is arguable that the IAA’s review of the delegate’s decision miscarried because it failed to consider whether to exercise its power under s 473DC(3) to invite the applicant to give new information on his ‘particular circumstances’ concerning the issue of relocation. It is said, as was the case in CRY16, the IAA disabled itself from completing its review because it did not have information about the applicant’s ‘particular circumstances’ relevant to the issue of relocation before it. The applicant submits it does not matter that the issue of relocation was considered in the context of assessing the counter-factual required by the principle in Rajalingam. Having expressed its findings with sufficient doubt, and having embarked on considering the relevant counter-factual, the IAA could not complete its assessment of the risk of harm without obtaining information relevant to the applicant’s particular circumstances concerning the issue of relocation.

27    The applicant therefore says it is not futile to allow the application for leave to appeal and to allow the appeal so that there is a final hearing in the Court below on the merits of the application for judicial review.

MINISTER’S CONTENTIONS

28    The Minister’s submissions commence with the issue of whether leave to appeal should be granted. It is noted that the applicant frames the question of whether there should be a grant of leave to appeal by reference to the two factors identified in Décor Corporation (at 398-399). There is no error in that approach per se, however, it must be noted that the power to grant leave to appeal conferred by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered. The factors identified by the Full Court serve as ‘general guidance’ rather than ‘rigid rules’: see in Décor Corporation (at 399).

29    Further, the Minister says, it has not been shown that ‘substantial injustice would result if leave were refused’. The medical certificate relied on by the applicant in the Federal Circuit Court was brief. It was obtained on 22 June 2017, more than a week after the hearing. To the extent that the certificate addressed the applicant’s capacity to attend the hearing on 14 June 2017, it relied only upon the applicant’s self-reported symptoms. The certificate did not account for the applicant’s failure to contact the Court or the Minister’s representative on the day of the hearing to explain his circumstances. For all these reasons, the Minister says the primary judge was correct to find the applicant’s explanation for his non-attendance to be inadequate. This finding is not challenged in the application for leave to appeal or the applicant’s submissions.

30    The Minister argues that the existence of a reasonable explanation for the applicant’s absence from the hearing is an important consideration in the exercise of the discretion to reinstate an application that has been dismissed on the basis of non-attendance: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J (at [7]). Ordinarily, an adequate explanation will be ‘a pre-condition to the exercise of the discretion’: cf Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 244 per Wilcox J (at 348) (considering an analogous application to extend time to commence proceedings). The Minister says that in circumstances where no adequate explanation has been given by the applicant for his non-attendance at the initial hearing, there would be no injustice if leave to appeal were refused.

31    Turning then to the issue of whether the primary judge’s exercise of discretion miscarried, the Minister notes, first, it is said by the applicant that the primary judge ‘overstated the primacy of the merits of the substantive application’. The Minister asserts that this complaint is not well founded. The prospects of success in relation to the substantive application is a highly significant factor to the exercise of the Court’s discretion to set aside orders made in the absence of a party. Where the substantive claim has little or no prospects of success that consideration is, of itself and without consideration of any other factor, likely to result in the Court refusing to exercise the discretion provided for in r 16.05 of the Rules: MZYEZ (at [8]) citing Gallo v Dawson (No 2) (1992) 109 ALR 319 per the High Court (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) (at 319-320) (Gallo No 2). The grounds advanced by the applicant at first instance were found by the primary judge to ‘not identify any arguable jurisdictional error’. That finding is not challenged and the applicant now abandons any reliance on those grounds. In circumstances where the grounds asserted were without merit, there was no error on the part of the primary judge in giving primacy to that consideration.

32    The Minister submits, and I accept, that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05. The applicant’s contention impermissibly elevates ‘guidelines’ developed in earlier decisions to the status of binding legal principles which a court must consider in the exercise of its discretionary power: Décor Corporation (at 398-399); Norbis v Norbis (1986) 161 CLR 513 (at 519-520); Hunter Valley Developments (at 348). See also my recent decision in ACK16 v Minister for Immigration and Border Protection [2018] FCA 1554.

33    As to the applicant’s specific complaints, the Minister correctly submits it would be surprising if the exercise of discretion required the Federal Circuit Court to consider the length of the delay between the failure of a party to appear and the bringing of an application to set aside the orders made in the absence of that party. The Minister contends the leading decision of this Court on the exercise of the discretion in r 16.05 does not identify that matter as a factor relevant to the exercise of the discretion: see MZYEZ (at [7]) cited recently in, for example, AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 (at [29]) and BAL17 v Minister for Immigration and Border Protection [2018] FCA 792. That is not to say that the factor could not be relevant in a particular case (and indeed a long delay may well be fatal), rather, it is to say that it is not a factor which the primary judge was required to consider in the exercise of the discretion.

34    The Minister submits, and I accept, that the question of prejudice to the Minister is in the same category. The existence of prejudice can be highly material. Where, however, there is no apparent prejudice, that factor takes on less importance. The mere absence of prejudice is not a sufficient basis to exercise the discretion: cf Hunter Valley Developments (at 349). The absence of any reference to prejudice in the primary judge’s reasons suggests that the primary judge did not consider it a factor that weighed against the applicant. In circumstances where, however, there was an inadequate explanation for the applicant’s non-attendance and no merit to the substantive application, it is not surprising that the mere absence of prejudice did not feature prominently in the primary judge’s reasoning.

35    The Minister contends that the applicant’s complaint that the primary judge did not weigh the issue of delay and prejudice against the merits of the substantive application should also be rejected. There is no prescriptive requirement that a judge considering the exercise of a discretion must make a specific finding in respect of each potentially relevant consideration. Where, as in this case, the merits of the substantive application were thoroughly examined and found to be poor, it was not necessary for the primary judge to perform the process of making a finding in relation to other potentially relevant factors and weighing that finding against the fact that the substantive application lacked merit: Gallo v Dawson (1990) 93 ALR 479 per McHugh J (Gallo No 1), affirmed in Gallo (No 2) (at 319-320).

36    As to the assertion that the primary judge erred in his assessment of the merits of the substantive application, the applicant now seeks to rely on a ground of review not advanced in the Federal Circuit Court. This Court is exercising appellate jurisdiction and is concerned with the correction of error. Specifically, given the discretionary nature of the primary judge’s decision, the applicant needs to demonstrate error on the part of the primary judge in exercising that discretion. The exercise of a judicial discretion does not miscarry merely because no consideration is given to an argument which was not raised before the judge. The standard of review required by House v The King (1936) 55 CLR 499 cannot be avoided simply by raising a new ground on appeal: see generally, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 per Gageler J (at [29]-[49]) and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 per Allsop J (as his Honour then was) (with whom Drummond and Mansfield JJ agreed) (at [34]-[38]).

37    In any event, the Minister says, even if the primary judge’s exercise of discretion did miscarry because of the failure to consider the question of delay and prejudice and associated failure to weigh these matters against other relevant factors, it does not follow that the appeal would be allowed. Indeed, this Court should not re-exercise the discretion in a different manner to the primary judge in circumstances where there was no adequate explanation for the applicant’s non-attendance and where the substantive application lacks merit.

38    The Minister’s submissions finally address the question of whether the grounds of review sought to be raised by the applicant’s counsel on appeal have sufficient merit to warrant the applicant’s case being reinstated. The applicant’s proposed ground of review depends on the contention that the IAA found it necessary to consider the issue of relocation to Cairo because it could not exclude the real chance that the applicant had been threatened by his fiancée’s family in the manner claimed, citing Rajalingam. The Minister says this contention is not consistent with a fair reading of the IAA’s reasons.

39    It is useful in this regard to set out the IAA’s reasoning (at [34]) on this issue in full:

… However, even accepting that the acid attack occurred as claimed, and that his fiancée’s family subsequently discovered the relationship between them, I do not accept that the applicant faces a real chance of harm as a consequence. The applicant’s evidence indicating that there has been no ongoing contact between his family and that of his fiancée since his departure does not suggest that his whereabouts is of ongoing interest to the other family; in these circumstances I have considerable doubt about the existence of an ongoing intention to harm him. On his own account, the applicant was able to remain in Cairo for over twelve months after leaving his home town when he was told that the family had found out about the relationship, and for some two months after his meeting with a friend from his home town which he believes placed him at risk of being discovered. Even if the applicant were found to be at risk of harm from his fiancée’s family in his home area – which I am not satisfied, in any event, rises to the necessary level of real chance – I am satisfied that the real chance of persecution does not relate to all areas of Egypt, the receiving country.

(Emphasis added.)

40    The Minister submits, contrary to the applicant’s submissions, the IAA was not left in sufficient doubt as to the merit of the applicant’s claims for protection in his home area that it felt required to consider the question of relocation in order to determine whether the applicant faced a real chance of persecution. On the contrary, the IAA expressly held that it was not satisfied that the applicant faced a real chance of persecution in his home area by reason of the threat posed by his fiancée’s family. It is true that the IAA went on to consider the question of relocation, however, this was merely an additional reason which supported the IAA’s conclusion. The relocation finding was confirmatory of, but not essential to, the outcome because the IAA had already reached the separate conclusion that the applicant did not face a real chance of persecution or a real risk of significant harm. So understood, any failure of the IAA to consider the exercise of its powers to seek further information from the applicant in relation to relocation was not unreasonable. Nor would such a failure be material to the outcome (because of the separate finding as to the risk of harm in the home area) and, accordingly, any error would not go to the IAA’s jurisdiction: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 per Kiefel CJ, Gageler and Keane JJ (at [30]-[31]), Nettle J (at [41]) and Edelman J (at [46] and [72]).

CONSIDERATION

41    In MZYEZ, Ryan J said (at [7]-[9]):

Principles governing an application for reinstatement

7    In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement

(Emphasis added [in original].)

8    In this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim: see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320.

9    It should also be observed that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted. However, I do not perceive that the application of those requirements – first, that the decision in question be attended by sufficient doubt to warrant its reconsideration, and, secondly, that substantial injustice would flow were leave not granted (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, per Sheppard, Burchett and Heerey JJ, at 398) – would result in any different outcome in this case.

42    It is true that the primary judge did not expressly consider prejudice and delay and that the absence of these factors might weigh in favour of the applicant. It is true that the focus was on the merits. But, in my view, this does not disclose error for a number of reasons. First, the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant. Secondly, in other cases on the same topic prejudice is not mentioned as a factor: see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 per North J (at [18]). Thirdly, prejudice is always relevant when raised, but is never likely to be raised in these cases by the Minister as there will be no immediate prejudice and as a model litigant can be expected to concede this point. (This was exactly the position discussed in MZYEZ by Ryan J (at [13]).) Fourthly, the absence of specific reference to delay or prejudice does not mean they were not considered and considered in a manner that was favourable to the applicant. Fifthly, the key consideration in most, but not necessarily all, of these cases will be the apparent strength of the merits: is there any point in reinstatement? In my view, while I may have accorded greater weight to the explanation for non-appearance, nothing in the process of analysis by the primary judge departed from well-established principles in cases such as MZYEZ. The exercise of discretion has not miscarried.

43    As to the merits, it is not now argued or arguable that the ground pressed before the primary judge was determined incorrectly. I accept the Minister’s submissions set out above (at [36]). Further, even if the finding in relation to relocation was essential to the IAA’s conclusion, the ground now raised by the applicant does not demonstrate error.

44    CRY16 does not establish that the IAA must consider the exercise of its discretionary powers to receive further information in every case where it reaches its conclusions for reasons which differ from the reasons of the delegate. In every case, the reasonableness of the IAA’s approach will be fact dependent.

45    In this case, a number of critical factors suggest that it was not necessary for the IAA to consider whether to give the applicant a further opportunity to give evidence and make submissions in relation to relocation. They include that, in his visa application form, the applicant had considered the question of possible relocation with specific reference to his previous relocation to Cairo: CLL16 v Minister for Immigration and Border Protection [2018] FCA 348 per Davies J (at [11]). While in his application he stated that following relocation to Cairo he still received threats, the IAA’s reasons record his verbal testimony that he lived in Cairo unmolested and unthreatened. It was not essential for the IAA to consider seeking out further information from the applicant, because he had already had an opportunity to address the issue of relocation.

46    The fact that he had relocated to Cairo before leaving Egypt supported the conclusion that relocation to Cairo was an option available to the applicant. That relocation had in fact occurred made it unnecessary to focus intensely on the applicant’s particular circumstances.

47    Importantly, and even on a reading of the IAA’s reasons most favourable to the applicant, the question of relocation only arose because the IAA found it necessary to consider the possibility that its primary finding in relation to the risk of harm might be incorrect. The imperative to consider seeking further information is much reduced in circumstances where the issue of relocation only arose in the event the IAA’s primary conclusion was incorrect.

48    For those reasons I consider the new ground raised by the applicant is without merit. It would, accordingly, be futile to allow the appeal and set aside the orders dismissing the application.

CONCLUSION

49    The application must be dismissed with costs.

Associate:

Dated:    24 October 2018