Aao19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 244
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 244
File number(s): MLG 20 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 18 March 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant was granted a protection visa which was subsequently cancelled – where applicant had returned to Iraq on two occasions following grant of protection visa notwithstanding claimed fears of harm – consideration of whether Tribunal engaged in illogical or irrational reasoning – where it was open for the Tribunal to conclude that the applicant had provided incorrect information – consideration of whether Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – finding that applicant was put on notice of and did respond to the Tribunal’s concerns – consideration of whether Tribunal acted unreasonably in refusing two adjournment requests – finding that first refusal of adjournment not unreasonable and applicant has not established on balance of probabilities that second adjournment request was made – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 101, 107, 109, 424A, 424AAA, 425 Cases cited: Gazi v Minister for Immigration and Citizenship [2013] FCA 1094
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505
Division: Division 2 General Federal Law Number of paragraphs: 147 Date of last submission/s: 22 January 2024 Date of hearing: 22 January 2024 Place: Melbourne Counsel for the Applicant: Ms C Middleton Solicitor for the Applicant: Simon Diab & Associates Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore ORDERS
MLG 20 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 3 January 2019 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 December 2018 by which the Tribunal affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Protection (subclass 866) visa (‘protection visa’).
BACKGROUND
The applicant is an Iraqi citizen who was granted a protection visa on 7 March 2012.[1]
[1] Court book at page 31.
That visa was granted on the basis of the applicant’s claims to fear persecution in Iraq from inter-tribal conflict in that country. In his application for a protection visa, the applicant claimed that after returning to Iraq after an extended period in Iran, he was abducted, his house was raided and members of his family were killed. He said that after two months in Iraq, he and his family were again forced to go to Iran where they lived illegally.[2]
[2] Court book at pages 2 to 3.
Notice of Intention to Consider Cancellation
On 15 December 2016, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) of the protection visa under section 109 of the Migration Act 1958 (Cth) (‘the Act’).[3] The NOICC stated that the delegate considered that the applicant had not complied with section 101(b) of the Act in that it appeared that he had provided incorrect answers in his protection visa application.[4]
[3] Court book at pages 1 to 7.
[4] Court book at page 1.
The delegate referred to the fact that the applicant had returned to Iraq on two occasions between 2012 and 2015, notwithstanding his claimed fears of harm, and that the applicant had spent a total of 13 months in Iraq during those visits without incident.[5]
[5] Court book at page 4.
The applicant responded to the NOICC on 29 December 2016.[6] In that response, the applicant denied any wrongdoing and said that he ‘completely stands by his truthful statements made during his application for protection’.[7]
[6] Court book at page 8 and following.
[7] Court book at page 13.
On 1 February 2017, the Department of Immigration and Border Protection (‘the Department’) completed an International Treaties and Obligations Assessment (‘ITOA’) and concluded that the applicant had returned to Iraq on a number of occasions without incident and therefore was not a person in respect of whom Australia owed non-refoulement obligations.[8]
[8] Supplementary Court Book at page 3.
Cancellation of protection visa on 30 June 2017
On 30 June 2017, a delegate of the Minister decided to cancel the applicant’s protection visa (‘cancellation decision’),[9] in circumstances where the delegate had determined that the applicant had not complied with section 101(b) of the Act.
[9] Court book at page 28 and following.
Application for review in Tribunal on 14 July 2017
On 14 July 2017, the applicant applied to the Tribunal for a review of the cancellation decision.[10] Relevantly, on 4 August 2017, the applicant advised the Tribunal that he had changed his representative.[11]
[10] Court book at pages 44 to 45.
[11] Court book at page 52.
By letter dated 3 October 2018, the applicant was invited to attend a hearing before the Tribunal which was scheduled to occur on 22 October 2018.[12]
[12] Court book at pages 57 to 59.
By letter dated 9 October 2018, the Tribunal wrote to the applicant (via his representative) requesting documents which related to or established the dispute between the Farhan and al-Shinawa tribes in Iraq.[13] The applicant was asked to provide this information by 18 October 2018.
[13] Court book at page 62.
On 16 October 2018, the applicant’s representative requested an adjournment of the scheduled hearing.[14] The applicant’s representative stated that an adjournment was required to allow the applicant to obtain the information requested by the Tribunal, which was being sourced from Iraq, and also to allow the applicant’s Freedom of Information (‘FOI’) request made on 8 October 2018 to be processed and responded to.
[14] Court book at page 63.
The Tribunal did not grant the requested adjournment but indicated by letter dated 16 October 2018 that if the applicant provided further information about the FOI request that had been made, the Tribunal may be able to facilitate the provision of these documents.[15]
[15] Court book at pages 67 and 68.
In response, the applicant’s representative indicated that the documents sought by the FOI request related to the applicant’s refugee determination and supporting documentation.[16] The applicant’s representative further stated:
As prescribed in the invitation letter a written submission was to be provided by 15 October 2018. Given a cancellation under s 109 is predicated on the provision of incorrect answers, the applicant is at a grave disadvantage without the refugee determination.[17]
[16] Court book at page 69.
[17] Court book at page 69.
The Tribunal made further inquiries of the applicant regarding the expected timeframe for the response to his FOI request.[18] The applicant’s representative advised the Tribunal that the request for documents under FOI legislation was lodged on 8 October 2018 on an urgent basis. The representative received a generic response indicating that the statutory timeframe for a response was 30 days. In those circumstances, the applicant’s representative again requested a short adjournment of the hearing before the Tribunal.[19]
[18] Court book at page 70.
[19] Court book at page 72.
By letter dated 17 October 2018, the Tribunal agreed to adjourn the hearing to 26 October 2018.[20]
[20] Court book at page 76.
By email dated 24 October 2018, the applicant’s representative provided a written submission and further documents in support of the application.[21] In that email, the applicant’s representative noted that they had not yet received a response to the FOI request and therefore the response was incomplete.
[21] Court book at page 78 and following.
In the applicant’s written submissions, in addition to providing greater detail on the reason and justification for his return to Iraq, the applicant’s representative stated that, in part, the delegate formed an incorrect understanding of the amount of time the applicant spent in Iraq due to:
… an error on behalf of the applicant’s previous representation, as there was a grave failure in providing this evidence to the cancellations unit. To clarify the cumulative period the applicant resided in Iraq was assessed at 13 months. However this calculation did not account for the applicant’s travels to Iran. Therefore the applicant remained in Iraq for approximately 10 months. … the addition of this information plays a vital role in constructing crucial facts and addressing inconsistencies when clarification is provided as to the applicant’s movements. Moreover please note, due to this inconsistency the date of return to Iraq was assessed as within 3 months of the grant of the protection visa. Due to this clarification the return to Iraq was approximately 1 year and 7 months after the grant of the protection visa. The date of the visa grant being 7 March 2012 and the first travel to Iraq being 23 September 2013.[22]
[22] Court book at page 85.
The applicant’s representative further referred to incorrect information provided by the applicant’s initial representative:
Please note in the previous decision reference was made to an incoming passenger card, referring to the applicant’s travel to Iraq. The reference by the delegate to the applicant’s return to Iraq in their decision was incorrect, and the previous agent omitted any reference to the applicant’s travel to Iran.[23]
[23] Court book at page 86.
Further, the applicant’s representative stated:
In the previous response given … by the applicant’s migration agent, a submission was provided explaining the reasons for the applicant’s return to Iraq and the time line of travel. Given that the applicant is illiterate it was difficult for him to cross-check the facts, and he completely trusted the previous agent in providing the submission in response to the department. The previous submission did not make any reference to the applicant’s travel to Iran. … We wish for this information to be rectified and not be seen as a negative marker of credibility on the applicant’s behalf. He should not be punished for the ineffectual representation of his previous migration agent.[24]
[24] Court book at page 91; See, also, Court book at page 34 where the delegate refers to the evidence that he relied upon in dealing with this issue – evidence which was not contained in submissions from the applicant’s representative.
The Tribunal hearing proceeded on 26 October 2018.[25] The applicant appeared and was represented. He was also assisted by an interpreter in the Arabic language.
[25] Court book at pages 157 to 159.
On 2 November 2018, the applicant’s representative provided the Tribunal member with a further written submission, noting that further information would be provided upon receipt.[26] In the post-hearing submission, the applicant’s representative said that the concerns about inconsistencies with dates in the applicant’s evidence could be explained by errors with translation rather than ‘a marker of an untruthful account on the applicant's behalf’.[27]
[26] Court book at page 160 and following.
[27] Court book at page 167.
In addition, the applicant’s representative relevantly stated:
The applicant was previously represented by … Global Visa Help. As expressed at interview the applicant was hindered by his previous migration agent’s response to the NOICC, which lead to issues of credibility. Previous submissions provided depict that the applicant wrote the submission. This is incorrect as the previous submission did not address accurately the applicant’s circumstances surrounding his return to Iraq. Subsequently we provide that the applicant relies on the submission put forward by our office and his testimony at interview coincides with what has been provided by our office.[28]
[28] Court book at page 168.
Also annexed to the applicant’s post-hearing submission was a copy of the decision granting the applicant his protection visa made in November 2011 (‘Independent Merits Review decision’), which is noted to have been released under an FOI request.[29] At the conclusion of the post-hearing submission, the applicant’s representative noted that they were still waiting on the following documents which would be provided upon receipt:
(a)letter from GP; and
(b)photocopy of every page of the passport.[30]
[29] Court book at pages 173 to 181.
[30] Court book at page 172.
A copy of the applicant’s passports was emailed to the Tribunal on 7 November 2018.[31]
[31] Court book at pages 182 to 202.
By email dated 4 December 2018, the Tribunal forwarded to the applicant’s representative a copy of its decision to affirm the decision under review.[32]
[32] Court book at pages 203 to 222.
TRIBUNAL DECISION
The Tribunal’s decision record of 4 December 2018 is at pages 206 to 222 of the court book.
At paragraph [2], the Tribunal set out the issue before it, namely, whether grounds for cancellation were made out, and if so, whether the applicant’s visa ought to be cancelled. The Tribunal was satisfied that a valid NOICC was issued to the applicant and that the NOICC contained sufficient particularity to enable the applicant to meaningfully respond.[33]
[33] Tribunal decision record dated 4 December 2018 at paragraph [8].
At paragraphs [9] to [10], the Tribunal set out the background to the applicant’s application for a protection visa. Relevantly, at paragraph [11], the Tribunal set out in some detail the information provided by the applicant in his application Form 866. This information essentially related to the incidents which the applicant claimed had happened to him in Iraq which caused him to fear for his safety, and the reasons why he feared for his safety if he were required to return to Iraq.
At paragraph [12], the Tribunal records that on the basis of the information provided by the applicant in his application form, he was granted a protection visa on 7 March 2012.
At paragraphs [13] to [15], the Tribunal summarised the applicant’s travel back to Iraq following the grant of the protection visa and concluded at paragraph [16] that in light of this travel, which was without incident, his claims in his protection visa application form that he would face harm if he were to return to Iraq were not correct.
At paragraph [17], the Tribunal then identified the issue before it, namely whether there had been non-compliance in the manner described in the section 107 notice, and if so, whether the visa should be cancelled.
At paragraphs [18] to [51], the Tribunal then went on to summarise the applicant’s evidence given in the hearing before it. This included various matters which the Tribunal put to the applicant pursuant to section 424AA of the Act and which the applicant responded to.[34]
[34] Tribunal decision record dated 4 December 2018 at paragraph [39] and following.
At paragraph [52], the Tribunal discussed the applicant’s claims that his first representative had misrepresented some of the contents of his response to the NOICC. Relevantly, the Tribunal said:
52.… Given the vagueness of the claim and the lack of any formal complaint being made, I am not satisfied that an adviser misrepresented his claims.
At paragraphs [53] to [55], the Tribunal considered the statements provided by the applicant’s psychologist and the applicant’s claims to suffer from poor memory due to PTSD. The Tribunal explained why it placed little weight on this evidence.
Moreover, the Tribunal rejected the suggestion that the inconsistencies in the applicant’s evidence could properly be explained by poor interpreting.[35]
[35] Tribunal decision record dated 4 December 2018 at paragraph [56].
At paragraph [57], the Tribunal rejected the applicant’s claim that in 2013, his former wife took their two daughters and never returned, leaving the applicant to care for their two sons. At paragraphs [58] to [59], the Tribunal also rejected other aspects of the applicant’s claims, including that he was at risk of harm due to an inter-tribal dispute. In particular, at paragraph [60], the Tribunal noted that there was no country information which ‘supported talk of an inter-tribal dispute’.
The Tribunal also noted that the original decision-maker who granted the applicant a visa also noted that his evidence about his tribal affiliation was ‘vague and unconvincing’.[36] Moreover, the Tribunal did not accept that any such tribal dispute would continue for 15 years without mediation.
[36] Tribunal decision record dated 4 December 2018 at paragraph [61].
Therefore, at paragraph [62], the Tribunal found that the applicant had fabricated his claims regarding him being targeted because of an inter-tribal dispute. At paragraph [63], the Tribunal went on to say:
63.The fact that he has returned to Iraq on two occasions for an extended period of time and faced no difficulties indicates that he is of no interest to the Farhan tribe or anyone else since he left Iraq. …
The Tribunal ultimately rejected the applicant’s evidence as to the reasons for his return to Iraq on the basis of numerous inconsistencies in his evidence. On this basis, the Tribunal concluded that the applicant’s claims to have had an adverse interest prior to seeking protection in Australia were fabricated.[37] This formed the basis for the Tribunal’s conclusion that there was non-compliance with section 101 of the Act in the manner described in the NOICC.[38]
[37] Tribunal decision record dated 4 December 2018 at paragraph [64].
[38] Tribunal decision record dated 4 December 2018 at paragraph [65].
At paragraphs [66] to [86], the Tribunal then went on to consider whether it should exercise its discretion and cancel the applicant’s protection visa. Relevantly, at paragraph [87], the Tribunal said:
87.The Tribunal is of the view that the applicant has fabricated his claims regarding persecution he allegedly suffered in Iraq, either at the hands of a ‘rival’ tribe or because of marital difficulties. Those areas in his profile where I was able to lend some weight in the applicant’s favour regarding the cancellation of his visa however, were insufficient to outweigh the concerns regarding the applicant’s willingness to fabricate claims in order to be granted a protection visa.
The Tribunal concluded that in all the circumstances, the applicant’s protection visa ought be cancelled and therefore decided to affirm the decision under review.[39]
[39] Tribunal decision record dated 4 December 2018 at paragraph [89].
PROCEEDINGS IN THIS COURT
The applicant filed his application for judicial review in this court on 3 January 2019, accompanied by an affidavit in support, in which he claimed three grounds of review.
At the commencement of the hearing before me on 22 January 2024, counsel for the applicant indicated that he sought leave to file a Further Amended Application, necessitated by recent receipt of the transcript of the Tribunal hearing.[40] That application was consented to by the Minister and leave was therefore granted for the applicant to rely upon that application.
[40] Court transcript at pages 2 to 3.
By his Further Amended Application, the applicant raises four grounds of review.
The applicant also relies upon an affidavit which he affirmed on 22 December 2023.[41] In that affidavit, the applicant gives evidence about discussions that he had with his solicitor on the morning of 26 October 2018, prior to the hearing before the Tribunal.[42]
[41] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024.
[42] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at paragraph [4] and following.
Relevantly, he asserts that his representative told him that she had received a call the previous day from ‘Immigration’ advising that the documents sought under an FOI application were ready. The applicant further states that his representative showed him a bundle of documents which appeared to be ‘a few hundred pages’. The applicant further states that his representative told him that she had not yet been able to have a look at the documents, but that she would ask for an adjournment of the hearing and she could then discuss the documents with the applicant once the hearing was adjourned.
The applicant further states:
5.We went into the Tribunal hearing. [The applicant’s representative] requested an adjournment and the request was denied. This was interpreted to me by an Arabic interpreter. The hearing proceeded without me seeing the documents received by my lawyers pursuant to the FOI request.
The applicant further deposes to having terminated his retainer with his previous representative in April 2022 and at that time obtained his file from them.[43] Annexed to this affidavit is a copy of a FOI decision document dated 25 October 2018, namely, the day prior to the Tribunal hearing.[44] That decision record indicates that of the documents requested by the applicant under the FOI Act, some documents were provided and some were not.
[43] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at paragraph [6].
[44] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at Annexure MS2.
The applicant also annexed to his affidavit copies of documents which he believes were some of the documents released pursuant to the FOI request.[45]
[45] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at Annexure MS3.
In submissions for the Minister, in referring to the NOICC, counsel for the Minister said:
… from page 3, it observes that notwithstanding those claims that he would be killed, that he feared being killed for reasons X,Y,Z, mere months, if not years, later he returned to the very place that he feared to be killed, and that needs to be emphasised. Now, I accept that there was a factual error at the start as to the location of the first trip, it was actually to Iran … but the point remained that this individual had returned to the very place he feared he would be killed and had not been harmed; had returned to the country safely on two separate occasions.[46] …
[46] Court transcript at page 17.
I will now turn to consider each of the grounds of review in turn.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant claims as follows:
1.The Tribunal’s decision was unreasonable because its finding that the applicant did not comply with s 101 of the Act was the product of illogical or irrational reasoning.
Particulars
a.It was illogical or irrational for the Tribunal to reason from its credibility findings relating to the applicant’s claim that his wife walked out on him to the finding that the applicant’s claims that there was an inter-tribal dispute, that the applicant would be targeted as a result if he returned to Iraq, that he was abducted while driving a taxi, beaten and ransomed, that his house was raided by a member of the opposing tribe, and that one of the applicant’s cousins was shot and killed were fabricated: see [59] and [62] of the Tribunal’s reasons.
b.The Tribunal’s finding at [57] of its reasons that the applicant’s claim was fabricated was illogical or irrational because it was based on the finding at [57(a)] that ‘a combined partner visa was lodged for the wife and four children in November 2015 some two years after she had allegedly walked out on him’ which is inconsistent with the information put to the applicant under s 424AA and recorded at [40] that ‘the date of the [combined partner] visa application was not known’.
It is submitted for the applicant that a decision will be affected by jurisdictional error where the Tribunal engages in a process of reasoning which is illogical, irrational or not open on the material before it.[47]
[47] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [12]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[133].
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (‘SZMDS’), Justices Crennan and Bell said:
130.In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, … or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
The parties do not disagree on these principles, but rather on their application to the facts in this case.[48]
[48] See, also, Court transcript at page 24.
Particular (a)
In support of particular (a) of ground 1, the applicant submits that it is apparent from the transcript of the Tribunal hearing that the issues raised by the applicant in his claim for a protection visa were not the subject of any significant discussion before the Tribunal.[49] It is therefore submitted that there was insufficient material before the Tribunal upon which to draw the adverse credibility findings that it made in relation to the applicant’s protection claims.
[49] Court transcript at page 8.
The applicant points to the fact that the discussion about the claim to fear harm from inter-tribal disputes was limited to some two or three questions. The discussion about the inter-tribal dispute continues briefly over page 24 and 25 of the transcript before the Tribunal member moves on to the topic of the applicant’s wife.[50]
[50] See Affidavit of Mr Adam Cunynghame affirmed and filed on 16 January 2024 at Annexure ACX-2.
The applicant then points to the fact that at page 32 of the transcript of the Tribunal hearing, the Tribunal asks the applicant about his claim to have been attacked in 2003 in Iraq.[51] The member asked whether this incident was linked to the tribal dispute, to which the applicant said it was not, and that is the extent of the discussion about the alleged events in 2003.
[51] Court transcript at page 9.
In this context, and in circumstances where the claims he made in support of his protection visa application were thoroughly tested by the decision-maker at the time his visa was granted,[52] it is submitted for the applicant that the information he provided in his protection visa application is consistent with the information provided to the Tribunal in the context of the cancellation process about the reasons that he feared harm if he were to return to Iraq. The applicant says that in this context, the conclusions reached by the Tribunal were therefore illogical or irrational.
[52] Court transcript at page 10; Court book at pages 176 to 177.
In particular, the applicant notes that at paragraph [29] of the Independent Merits Review decision, the initial decision-maker stated:
29.I asked the claimant about the incident where he was kidnapped while he was driving his taxi in Iraq in September 2003. The claimant was able to provide explicit detail of the event, and his recollections were consistent with information previously provided.[53] …
[53] Court book at page 176.
Similarly, the applicant submits that the Independent Merits Review decision-maker made the following observations about his evidence regarding the alleged raid on his home.[54] Relevantly, at paragraph [30] of the Independent Merits Review decision, the decision-maker observed:
30.… He provided detail consistent with previous interviews about the event including details of the beating of his wife. The one exception related to the identification of the perpetrator…[55]
[54] Court transcript at page 10.
[55] Court book at page 176.
The Independent Merits Review decision also notes that the applicant’s evidence about the third incident at his uncle’s house was also consistent with previous reports. It also noted at paragraph [42] that the information contained in the RRT decision relating to the applicant’s father was:
42.… consistent with the (applicant’s) claim to have returned to Iraq in 2003 and to have been kidnapped and held hostage until a ransom was paid. The decision also provided consistent information about a family member being shot in October 2003, for the reasons of tribal revenge.
It was submitted for the applicant that in the face of these assessments about the veracity of the applicant’s claims, the Tribunal’s findings at paragraph [59] of its reasons for decision that the applicant’s claims ‘all rely on his oral evidence, which I found lacks credibility’ was simply not correct.[56] It is submitted that there was other evidence before the Tribunal relating to the applicant’s claims for protection in the form of the Independent Merits Review decision, which had accepted his evidence.
[56] Court transcript at page 11.
The applicant submits that when one considers this, together with the lack of any real or substantial discussion in the Tribunal hearing about the applicant’s claims to fear harm if he were to return to Iraq as contained in his application for a protection visa, it was simply illogical or irrational for the Tribunal to conclude that the applicant must have been lying in 2010 simply because it found that he was lying about the reasons why he returned to Iraq after he had been granted a protection visa.[57]
[57] Court transcript at page 11.
It is further submitted that this finding was critical to the cancellation decision as the finding by the Tribunal that the claims made by the applicant in 2010 were fabricated was the basis for the Tribunal concluding that there had been non-compliance with section 101 of the Act, and therefore, provided a reason for the cancellation of the applicant’s visa to be considered.
In response, the Minister submits that there is no illogicality or irrationality in the Tribunal’s reasoning in the sense contemplated in SZMDS.[58] Rather, at its highest, it may be said that a different decision-maker may have come to a different conclusion on the facts of this case, but accepting that may be the case, that does not amount to illogicality or irrationality.
[58] Court transcript at pages 24 to 25.
I agree with the Minister’s submission in this regard. When the Tribunal’s reasons are read in their entirety and fairly, they do not support the proposition that the adverse credibility findings were based solely on whether the Tribunal accepted that the applicant’s wife had left him in 2013 as alleged, or on the basis that he had fabricated his claims for protection relating to a risk arising from inter-tribal conflict. Rather, it is clear that the Tribunal’s concerns about the applicant’s credibility were based on a range of factors. This included:
(a)the fact that the applicant had been able to return to Iraq relatively soon after his protection visa was granted ‘without apparent issue or impediment’;[59]
(b)the applicant’s evidence that although he said that his initial advisor had included information in his response to the NOICC which was not correct, he was unable to identify those matters which he believed were incorrect, nor did he make a formal complaint against the advisor;[60]
(c)notwithstanding that the applicant had claimed that his wife had left him in 2013, he had still not formally divorced her;[61]
(d)at some point after the applicant’s wife allegedly left the applicant, she applied for a partner visa together with all four children;[62]
(e)the applicant remained in Iran for some seven years after he had allegedly left Iraq following the incidents in 2003;[63] and
(f)the lack of country information which supported the applicant’s claims to have feared harm due to inter-tribal conflict.[64]
[59] Tribunal decision record dated 4 December 2018 at paragraph [16].
[60] Tribunal decision record dated 4 December 2018 at paragraph [52].
[61] Tribunal decision record dated 4 December 2018 at paragraph [57(d)].
[62] Tribunal decision record dated 4 December 2018 at paragraph [57(a)].
[63] Tribunal decision record dated 4 December 2018 at paragraph [47].
[64] Tribunal decision record dated 4 December 2018 at paragraph [60].
For the following reasons, I am not satisfied that ground 1(a) is made out.
On the applicant’s own evidence, he returned to Iraq within a relatively short period of time after he had been granted a protection visa; a visa that the applicant had sought on the grounds that he claimed to have feared harm if he were to be required to return there. The applicant provided an explanation as to why he returned, namely that his wife had left him and, moreover, that she had abandoned their two sons.[65] The Tribunal did not accept that this had occurred as claimed.[66] That finding was open on the material before the Tribunal. Moreover, the Tribunal found that the applicant did not suffer any harm whilst in Iraq on two separate occasions.[67] That was a factor which the Tribunal could reasonably place some weight on.
[65] Tribunal decision record dated 4 December 2018 at paragraph [23] and following.
[66] Tribunal decision record dated 4 December 2018 at paragraphs [57] and [64].
[67] Tribunal decision record dated 4 December 2018 at paragraph [87].
On the applicant’s own evidence, he conceded that he did return to Iraq on 23 September 2013 and remained there until 10 April 2014 (a period of over six months) and then again from 26 November 2014 until 15 February 2015 (a further period of almost four months).[68]
[68] Affidavit of Mr Adam Cunynghame affirmed and filed on 16 January 2024 at Annexure ACX-2 at page 12.
Having regard to the totality of the evidence before it, it was open to the Tribunal to reach the conclusions that it did about the applicant having provided incorrect information in support of his protection visa application for the purposes of section 101 of the Act.
For each of these reasons, ground 1(a) is not made out.
Particular (b)
By particular (b) to ground 1, the applicant claims that there was an inconsistency between the Tribunal’s reasoning at paragraph [40] and that at paragraph [57(a)], and therefore, it was illogical or unreasonable for the Tribunal to reach the conclusion that it did at paragraph [57(a)].
Relevantly, the applicant points to the fact that at paragraph [40], the Tribunal records the fact that it put to the applicant under section 424AA that his wife and all four children had lodged an application for a combined partner visa[69] and that the Tribunal records that whilst this ‘information was valid as at November 2015…the date of the application was not known’.[70]
[69] Court transcript at page 11 and following.
[70] Tribunal decision record dated 4 December 2018 at paragraph [40].
In circumstances where the issue of whether the applicant’s wife had, in fact, left him and abandoned their two sons in Iraq was central to whether the applicant’s explanation as to why he risked his own life to return to Iraq on two separate occasions between 2013 and 2015, it was submitted for the applicant that this was an important aspect of the Tribunal’s reasoning.[71]
[71] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [17].
In that context, therefore, it was submitted that the Tribunal’s reasoning at paragraph [57(a)] was illogical or irrational in so far as it rejected the applicant’s claims that his wife had abandoned his two sons and left the applicant on the basis that a combined partner visa had been lodged for the wife and all four of their children and that this contributed to its subsequent finding that the applicant lacked credibility.
It is submitted for the Minister that any discrepancy between paragraphs [40] and [57(a)] of the Tribunal’s reasons is not relevant or material.[72] That is, the Minister submits that even if the court were to accept that it is not clear from those two paragraphs when the application for the partner visa was made, the dispositive issue before the Tribunal was that any partner visa nominating all four children was made.
[72] Minister’s Outline of Submissions filed on 16 January 2024 at paragraph [29].
This, it is submitted for the Minister, was relevant in circumstances where the applicant had argued before the Tribunal that the reason why he returned to Iraq in 2013 and 2014 was because his wife had left him and abandoned his two sons, and he had to go there to ensure that they were being looked after in circumstances where he could not bring them to Australia to live with him.[73] The Tribunal rejected this evidence on the basis that there had been a partner visa lodged for the wife and all four children after the wife allegedly left the applicant.
[73] Court transcript at page 25 and following.
I agree with the Minister’s submissions in this regard.
There is no suggestion by the applicant that the partner visa referred to was applied for before the wife allegedly left him. Rather, the applicant sought to explain the partner visa on the basis that the wife’s family had pressured him to make the application. At paragraph [42] of the Tribunal’s reasons, the Tribunal relevantly says:
42.He claimed that he was scared of his wife’s parents because of the killing here. Asked to clarify this, he said that his brother was stabbed not killed. Because he was afraid of them he had to do what they told him, and they told him that he had to bring their daughter to Australia. He was forced to put in an application for them because he was scared of them until now.
Even if the Tribunal was incorrect in understanding that the application for a partner visa was made in November 2015, the Tribunal was correct in understanding that the application was made after the applicant’s wife had allegedly left him. So much is evident from the applicant’s own evidence. Indeed, the applicant’s case is that he did make this application, but only because he had been pressured into doing so by his wife’s family.
The Tribunal considered this explanation but rejected it at paragraph [57(a)]. When viewed in context, it was reasonably open to the Tribunal, having regard to the applicant’s own evidence, to conclude that his claims that his wife had left him and abandoned his two sons in 2013 were not credible. No illogicality or irrationality arises from the Tribunal’s reasons.
For these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims that:
2.The Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) (‘the Act’).
Particulars
a.The information given to the applicant pursuant to s 424AA recorded at [40] of the Tribunal’s reasons was different to the information which was the reason or part of the reason for affirming the decision under review recorded at [57(a)].
Section 424A of the Act requires the Tribunal to provide the applicant with clear particulars of any information that the Tribunal considers would be a reason or part of the reason for affirming the decision under review, inform the applicant of the consequences of that information being relied upon and invite the applicant to comment on the information. By operation of section 424A(2A), the Tribunal is relieved of the requirement to give the information and invite a response in writing if the information is given orally at a hearing under section 424AA.
The content of and manner in which information is given to an applicant under section 424AA must provide the applicant with a ‘meaningful opportunity to comment or respond’. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at paragraph [10], Justice Flick said:
10.… s 424AA(b) attempts to ensure that the “information” communicated orally rather than in writing can be meaningfully addressed. Section 424AA(b)(i), it will be noted, is not an obligation of perfection; it is an obligation to ensure “as far as is reasonably practicable” that an applicant understands the relevance of the “information” in question. … Section 424AA(b)(iii) ensures that an applicant is to be given an opportunity to have “additional time” in which to respond or comment. …
At paragraph [23], Justice Flick went on to add:
23.… the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to ‘comment … or respond …’ is meaningful.
Ultimately, what is required to comply with this section will depend on the circumstances of each case.
Again, the Minister does not take issue with these principles. The difference between the parties is their application to the facts of this case.
It is submitted for the applicant that the Tribunal had three pieces of information which might be the reason or part of the reason for affirming the decision under review. That is:
(a)information about the combined partner visa;
(b)information about the applicant’s wife and children attempting to board a plane; and
(c)that on his return to Australia in February 2015, he was interviewed by Border Force personnel and he said that he had visited his wife and family whilst in Iraq.[74]
[74] Court transcript at page 6.
Each of these matters was put to the applicant pursuant to section 424AA as summarised in paragraphs [39] to [41] of the Tribunal’s decision record. By ground 2, it is submitted for the applicant that the Tribunal did not give proper particulars in relation to the information about the combined partner visa to the applicant, and in failing to do so, did not provide the applicant with a meaningful opportunity to respond as required by section 424AA. The applicant says that this failure amounts to a jurisdictional error.[75]
[75] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [22].
In particular, the applicant points to the discrepancy between what is recorded as having been put to the applicant in paragraph [40], namely, that ‘his wife and all four children lodged an application for a combined partner visa (the information was valid as at November 2015 but the date of application was not known)’, whereas at paragraph [57(a)], the Tribunal decided the matter on the basis that the partner visa application had been made two years after the applicant’s wife allegedly left the applicant.[76]
[76] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraphs [23] and [24].
The applicant submits that the failure to make it clear to the applicant that the Tribunal’s concern was that the applicant’s wife had made a combined partner visa application two years after he said that she had left him, meant that the applicant had not been given ‘clear particulars’ of the information. This, it is submitted for the applicant, amounts to a failure to comply with section 424AA of the Act.[77]
[77] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [25].
For similar reasons to those set out above in relation to ground 1(b), the issue of concern to the Tribunal was not that the applicant’s wife had lodged a partner visa application two years after she allegedly left the applicant, but rather, that she lodged a partner visa for herself and all four children after she allegedly left the applicant and after she had allegedly abandoned her two sons. It was this inconsistency which was a matter that the Tribunal felt might lead it to affirm the decision under review. This concern was put to the applicant and he was given an opportunity to respond, consistent with the obligation under section 424AA.
It is also clear, as submitted by the Minister, that the applicant understood the concern raised by the Tribunal as in the post-hearing submission.[78] In that submission, the applicant’s representative relevantly stated:
… The member also raised additional concerns at hearing which will also be responded to in the following submission.
As per your request, kindly see our submission in accordance with our client’s instructions.[79]
[78] Minister’s Outline of Submissions filed on 16 January 2024 at paragraph [31].
[79] Court book at pages 161 to 162.
Under the heading ‘Credibility of the Applicant’, the applicant’s representative went on to say:
In regards concerns raised as towards the overall credibility of the Applicant. The member highlighted various inconsistencies apparent to him at hearing. Specifically the lodgement of a subsequent spouse visa, attempting boarding of a flight of his wife and children, inconsistency surrounding his uncle being threatened and statements given to Border Force Officials.[80] (emphasis added)
[80] Court book at page 165.
The applicant’s representative then proceeded to make submissions regarding how the Tribunal ought to deal with credibility concerns. It was in this context that the applicant’s representative said, under the heading ‘Lodgement of a subsequent spouse visa’:
The member raised concerns as to the applicant’s testimony that he was unaware [of] the location of his wife, due to the lodgement of a subsequent spouse visa. In response we maintain the applicant at all times the applicant was pressured by his wife’s family to lodge a spouse visa. The applicant at all time (sic) was concerned with moving his children from Iraq.[81]
[81] Court book at pages 166 to 167.
It is clear from this submission that the applicant understood the Tribunal’s concern and was able to, and in fact did, provide a response to that concern.
The Tribunal did not fail to comply with its obligation under section 424AA of the Act.
Consequently, ground 2 is not made out.
Ground 3
By ground 3, the applicant claims that:
3. The Tribunal acted unreasonably in-
(a) refusing to grant a two-week adjournment prior to the hearing; and/or
Particulars
a.The applicant requested a two-week adjournment prior to the hearing so that he could receive and consider relevant documents urgently requested under the Freedom of Information Act 1982 (Cth) (the ‘FOI Act’)
b. The Tribunal adjourned the hearing for four days.
c.The applicant’s migration agent received the documents requested under the FOI Act in the evening on the day before the adjourned hearing.
(b)refusing to grant an adjournment at the commencement of the hearing.
Particulars
a.The applicant’s representative requested an adjournment at the commencement of the hearing to permit the opportunity to consider the documents received under the FOI Act.
b. The Tribunal refused to grant an adjournment.
By ground 3, the applicant asserts that in refusing to grant the applicant’s requests for an adjournment, the Tribunal acted unreasonably.
First adjournment request prior to the hearing
The background to the request for an adjournment and the Tribunal’s response is set out in some detail above. It is not in dispute that the original hearing was scheduled for 22 October 2018 but was adjourned for four days and ultimately occurred on 26 October 2018.
As set out above, the applicant’s request for an adjournment was based on various grounds, including that he had made an FOI request seeking the applicant’s refugee determination and supporting documents. The applicant’s written submissions to the Tribunal noted that the applicant’s FOI request had not yet been complied with.[82]
[82] See Court book at page 78.
It is submitted for the Minister that when viewed in context, the way in which the Tribunal dealt with the applicant’s requests for additional time was reasonable.[83] The Minister notes that in corresponding with the applicant about the need for more time to allow the FOI request to be complied with, the Tribunal did not dismiss this out of hand. Rather, in its correspondence on 16 October 2018, the Tribunal asked for more information about what FOI documents had not yet been provided and why they are required as ‘it may be possible for the Tribunal to facilitate getting these documents to your representative’.[84]
[83] Minister’s Outline of Submissions filed on 16 January 2024 at paragraph [34].
[84] Court book at page 67; Minister’s Outline of Submissions filed on 16 January 2024 at paragraph [33.1].
In addition, in the applicant’s pre-hearing submissions to the Tribunal, not only did the applicant’s representative say that they had not yet received the FOI documents, but they went on to say that:
A response with the relevant FOI documents will be provided to the Tribunal on reception of these documents.[85]
[85] Court book at page 78.
The Tribunal had the discretion to grant an adjournment, which is required to be exercised reasonably.[86] As noted by the plurality in Li at paragraph [66]:
66.… The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. …
[86] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’).
The applicant submits that this case is very similar to the circumstances referred to by Justice Logan in Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 at paragraph [38].[87] Before coming to Justice Logan’s comments at paragraph [38], it is appropriate to note his Honour’s observations at paragraph [34] where he referred to the principles arising in Li, and in particular, that a decision to adjourn, or in that case, a decision not to reschedule a hearing:
34.must be exercised according to law and it will only be so exercised if it is exercised reasonably …. It will not be exercised reasonably if it is exercised in a way that no reasonable tribunal could so exercise the power in the circumstances concerned.
[87] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [42]; Court transcript at page 14.
It was in that context that his Honour then went on to say at paragraphs [37] to [38]:
37.The Tribunal's refusal further to reschedule was not unreasonable in the sense described in the circumstances of this case. The Tribunal considered Mr Gazi's request and such material as he submitted in support of that request. It did so on the basis that Mr Gazi was entitled to be and had been offered a hearing but that, as a matter of discretionary value judgement, the hearing offered should not be rescheduled.
38.Mr Gazi did not put his request for a rescheduling of the hearing on the basis that he needed a little extra time to secure further supporting documentation. It is certainly possible to envisage a case where a refusal to reschedule might be unreasonable if an applicant had placed before the Tribunal material which showed that, notwithstanding diligent endeavour to secure materials which were supportive of a successful challenge to the decision under review, it had not proved possible to secure these from a third party in time for the appointed hearing date. Where that applicant also put before the Tribunal in conjunction with the rescheduling request evidence which showed that the supporting material would be available within a short time, a refusal by the Tribunal to reschedule might very well be regarded as unreasonable. Li was a case of that kind.
This case is not on all fours with Li, to which his Honour was referring. In Li, after setting out the particular facts in Li and the issues before the Migration Review Tribunal at the time of its refusal to adjourn the hearing as requested by the applicant in that case, Justice Gageler said:
122.… Ms Li had been in Australia for some years. The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA's second skills assessment, which she contended to have been erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the Minister concedes, "coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained". Indeed, the evidence before Burnett FM showed that a favourable skills assessment did in fact eventuate, three months later. Nothing in the MRT's reasons for decision suggests that the MRT took a different view of Ms Li's prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.
…
124.No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.
In this case, at the point at which the adjournment request was made, the applicant did not know how long it would be for the FOI documents to be produced. Nor did the applicant request the adjournment so that he could get a specific document which would be dispositive of the issue before the Tribunal. In any event, the Tribunal did agree to a short adjournment of the hearing for four days. Moreover, the Tribunal also offered to assist if it could in obtaining any documents that the applicant had sought in his FOI request. In addition, the applicant was given the opportunity to make a post-hearing submission, and indeed did so. In those circumstances, the decision to refuse to adjourn the hearing by more than one week was not in my view unreasonable in the sense contemplated in Li.
The applicant submits that in considering the initial adjournment request, the Tribunal acted unreasonably in determining that it was ‘loath to reschedule the hearing unless the reason is absolutely critical’.[88] This is a reference to correspondence sent from the Tribunal to the applicant on 16 October 2018.[89] It is important to note however, that this phrase was used in the context of advice that the member was part-time and therefore was loath to reschedule the hearing unless the reason is absolutely necessary. It was also a statement made in the context of an invitation by the Tribunal to assist if it could in obtaining the documents that the applicant required and had sought in his FOI application. Moreover, it was a comment made prior to the granting of an adjournment of four days. So notwithstanding the comment, the Tribunal member did, in fact, grant a short adjournment, albeit not as long as requested.
[88] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [49].
[89] Court book at page 67.
For each of these reasons, the manner in which the Tribunal dealt with the first request for an adjournment was not unreasonable in the Li sense and does not give rise to any jurisdictional error.
Second adjournment request at the commencement of the hearing
The applicant further submits that his migration agent received the FOI documents on the evening of 25 October 2018, the day before the hearing.[90] The applicant asserts that at the commencement of the hearing, namely at 8:30am on 26 October 2018, the applicant’s migration agent requested an adjournment of the hearing in order to consider the FOI documents. According to the applicant, that request was refused and no written reasons were given for the refusal.
[90] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [40].
In the applicant’s affidavit affirmed on 22 December 2023, he says:
4.I attended the Tribunal in the morning of 26 October 2018 for the hearing. My lawyer at the time … said to me words to the effect of: “I received a call from Immigration yesterday afternoon. The FOI documents were ready. I went to their office just before 5pm and collected the papers.” She showed me a bundle that looked to me to be a few hundred pages. [My lawyer] then said to me: ‘I haven’t had the chance to go through the documents yet. We have to go in to the Tribunal now. I will ask for an adjournment and then I will have to talk to you about these documents”. [My lawyer] spoke to me in Arabic which is my native language.
5.We went into the Tribunal hearing. [My lawyer] requested an adjournment and the request was denied. This was interpreted to me by an Arabic interpreter. The hearing proceeded without me seeing the documents received by my lawyers pursuant to the FOI request.[91]
[91] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at paragraphs [4] and [5].
In addition, in the course of submissions, the applicant’s representative pointed to the hearing record which contains a handwritten notation in the following terms:
8:28 am/8:37am
Member was reading through new documents before hearing.[92]
[92] Court book at page 158; Court transcript at page 15.
I make a number of observations about this evidence. In relation to the request for an adjournment, there is no reference in the transcript of the Tribunal hearing to any request for an adjournment having been made or rejected. Moreover, the applicant has not called his former lawyer to give direct evidence that she made the request for an adjournment.
To the extent that there is a notation on the hearing record that the Tribunal member was reading documents provided prior to commencing the hearing, it is not clear what those documents were, and in any event, the reading of documents does not equate to a request for an adjournment being made.
In those circumstances, in so far as ground 3 asserts that there was a further oral request for an adjournment on the day of the hearing, the applicant has not established on the balance of probabilities that such a further request for an adjournment was made at the commencement of the Tribunal hearing. No unreasonableness therefore has been established on the basis that the Tribunal proceeded to conduct the hearing as scheduled.
For each of these reasons, ground 3 is not made out.
Ground 4
By ground 4, the applicant states that:
4.Further or alternatively, the Tribunal failed to comply with s 425 of the Act by refusing to adjourn the hearing.
Particulars
The applicant was denied a meaningful opportunity or real chance to give evidence and present arguments at the hearing due to the matters referred to in the particulars to 3(a) and (b) above.
It is submitted for the applicant that an important aspect of a meaningful opportunity to appear and present arguments to the Tribunal is an opportunity to review and consider material which might assist the application.[93] In circumstances where the applicant’s representative had received voluminous documents the evening prior to the Tribunal hearing, it is submitted for the applicant that the failure to adjourn the hearing denied the applicant that opportunity.
[93] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [54].
The applicant points to the following specific matters to support this submission. First, the Independent Merits Review decision contains a stamp which indicates that it was received at the hearing and is dated 26 October 2018.[94] In those circumstances, it is submitted for the applicant that he did not have a copy of that document prior to the hearing.
[94] Court book at page 173; Court transcript at page 16.
Similarly, the applicant submits that the ITOA was not available to the applicant prior to the hearing and was only put to him at the hearing.[95]
[95] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [55]; Court transcript at page 16.
Further, the applicant has annexed another document to his affidavit which was included in the documents produced in response to his FOI request, namely a record of his interview with Border Force authorities on his arrival from Iraq in 2015, which contains the following statement:
He stated he has been to Iraq a few times to see his family.[96]
[96] Applicant’s Affidavit affirmed on 22 December 2023 and filed on 3 January 2024 at Annexure MS-2.
It is submitted that this document could have been useful if he had it prior to the hearing as the applicant could have pointed to that document when it was put to him by the Tribunal member that he had told border authorities that he said he had returned to see his wife.[97] In fact, it is submitted for the applicant that had he had access to that document, he could have said ‘No, that is not what I told them, this is what I said’ and that may have affected the Tribunal’s assessment of his credit. It is submitted that this is particularly important in this case, given the Tribunal’s rejection of his oral evidence on the basis that it lacked credibility.[98]
[97] Court transcript at page 16.
[98] Court transcript at page 17.
It is further submitted for the applicant that the fact that a post-hearing submission could be, and indeed, was filed, was not to the point.[99] Rather, his evidence in the course of the hearing was given without the benefit of having the opportunity to review documents and the manner in which it was given resulted in the Tribunal forming an adverse view of the applicant’s credibility.[100]
[99] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [59].
[100] Court transcript at page 17.
It may be accepted that had the applicant been able to consider and review the material produced in response to the FOI request, there are things that he may have responded to in more detail or with greater force. However, section 425 of the Act does not require the Tribunal to afford the applicant every opportunity to present his case, it simply requires that the applicant be afforded a ‘meaningful’ opportunity.
In this case, the issue before the Tribunal was whether the applicant had been accurate in his responses to questions on his application for a protection visa. The applicant was on notice of the issues relevant to this inquiry, firstly, by reference to the NOICC, and secondly, by reference to the delegate’s decision in respect of which he sought a review.
I also note that in so far as the applicant submits that he was not provided with the ITOA prior to the hearing, the operative parts of that document were extracted in the delegate’s decision.[101]
[101] Court book at pages 41 to 42.
For the reasons discussed above in relation to ground 3, the applicant has not established that an oral request for an adjournment was made on the day of the hearing and refused.
To the extent that this ground relates to the initial request for a two-week adjournment, for the reasons discussed above, the Tribunal’s decision to grant a shorter adjournment period did not deny the applicant of a meaningful opportunity to provide evidence and make submissions. The applicant was given an opportunity, and in fact, did make post-hearing submissions in respect of the documents produced under the FOI request.
Moreover, it is apparent from the transcript of the Tribunal hearing that the applicant was given an opportunity to provide evidence and make submissions. He was assisted by an interpreter and was represented by his migration agent.
It is also apparent from the transcript that the Tribunal made it clear to the applicant that he could seek additional time to comment on or respond to information. At page 28 of the transcript, after putting various pieces of information adverse to the applicant, the following exchange occurred:
Member:… This raises questions about your credibility as a witness. You can have more time to respond to my concerns, but I’d ask for your comments on that information.
Applicant: I want to answer now.[102]
[102] Affidavit of Mr Adam Cunynghame affirmed and filed on 16 January 2024 at Annexure ACX-2 at page 28.
No adjournment was sought by the applicant at that or at any other time during the hearing. To the extent that the applicant states that he was not given a fair hearing on the basis that he had not been provided with a copy of the ITOA, the applicant in fact addressed the ITOA in his post-hearing submissions.
Towards the end of the hearing, the following exchange occurred:
Member:… Is there anything you would like to add at the moment? I don’t have any more questions but it’s your opportunity to say something? I’ll give your advisor some time to give a post-hearing submission.
Applicant’s Representative:[103] All I want to say, please allow me to see my children.
Member:Okay. So I’ll give a week for that submission. That’s standard practice.
Applicant’s Representative: Can I ask for two weeks? I’ll tell you why – only because I want to request the FOI about the – his return with the border officer, which he’s interviewed.
…
And I know that we’re going to get in trouble in terms of that. And I’ve written down everything else that you’ve asked for. So if I can request two weeks.[104]
[103] This appears to by a typographical error and it reads as if this was said by the applicant.
[104] Affidavit of Mr Adam Cunynghame affirmed and filed on 16 January 2024 at Annexure ACX-2 at page 36.
There was then discussion about how much time the member would allow for a written post-hearing submission. It is clear from this exchange that the applicant’s representative was not limited in the matters that she could address to those matters raised by the Tribunal alone.
It is submitted for the applicant that the provision of post-hearing submissions did not ameliorate the issues at the hearing itself because the applicant’s representative was only invited to make submissions after the hearing on specific matters.[105]
[105] Applicant’s Outline of Submissions filed on 3 January 2024 at paragraph [59].
That may be so, but the applicant has not established that the credibility findings made by the Tribunal were so unreasonable that no reasonable decision-maker would have made them. Nor is it apparent that those findings were based on issues which could have been cured had the applicant been given time to properly consider the documents produced under FOI.
It is apparent from a fair reading of the Tribunal’s decision that the Tribunal had numerous concerns about the evidence given by the applicant. Even if the applicant could have clarified that he had not told the Border Patrol officials that he had visited his wife, but rather that he had visited his family as recorded in the document annexed to the applicant’s affidavit, this is not dispositive of the issues before the Tribunal. The Tribunal was concerned about the fact that within a relatively short period of time after the applicant had claimed to fear that he would be killed if he returned to Iraq, he returned on more than one occasion and remained living there for over 10 months (cumulatively) without any apparent difficulties.
Those findings were reasonably open to the Tribunal and the applicant has not established that any amount of time to consider the FOI documents could have addressed those concerns.
For each of these reasons, and having regard to the circumstances of this matter, the refusal to adjourn the Tribunal hearing did not amount to a breach of section 425 as alleged or otherwise.
Ground 4 is therefore not made out.
CONCLUSION
As none of the grounds of review are made out, I make orders dismissing the applicant’s application.
The first respondent seeks costs in the event that the court dismisses the applicant’s application. I am satisfied that it is appropriate in the circumstances for costs to follow the event and therefore order that the applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 18 March 2024
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