ACB17 v Minister for Immigration & Anor
[2017] FCCA 1880
•9 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACB17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1880 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant fearing harm in India – applicant not believed – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424, 424A, 424AA, 425, 441 |
| Cases cited: Minister for Immigration v Brar [2012] FCAFC 30 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v You [2008] FCA 241 SAAP v Minister for Immigration [2005] HCA; 228 CLR 294 SZMCD v Minister for Immigration (2009) 174 FCR 415 SZMMP v Minister for Immigration (2009) 174 FCR 514 SZOIG v Minister for Immigration & Anor [2016] FCCA 176 SZOIG v Minister for Immigration [2016] FCA 547 SZBYR v Minister for Immigration (2007) 81 ALJR 1190 |
| Applicant: | ACB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 6 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 August 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 9 August 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C McConnel of Clayton Utz |
ORDERS
The Court directs that the name of the applicant not appear on the transcript of proceedings.
The application filed on 5 January 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 6 of 2017
| ACB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 6 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claim for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions.
The applicant is a citizen of India,[1] who arrived in Australia on subclass 771 (Transit) visa on 22 June 2015.[2] The applicant arrived from New Zealand, where he travelled on a student visa.[3] The applicant applied for a protection visa on 24 July 2015,[4] claiming fear of death[5] and fear of harm from the National Students Union of India (NSUI).[6] At the Tribunal hearing, the applicant also claimed that he feared harm from the youth members of the Akhil Bhartiya Vidhayarthi Parisad (ABVP),[7] and that he feared discrimination[8] and attacks[9] due to the political unrest between India and Pakistan.[10]
[1] Court Book (CB) 129 and 10 at [28] of the Tribunal decision.
[2] CB 8 at [2] of the Tribunal decision.
[3] CB 15 at [61] of the Tribunal decision.
[4] CB 8 at [2] of the Tribunal decision.
[5] CB 9 at [15] of the Tribunal decision.
[6] CB 9 at [17] - [21] of the Tribunal decision.
[7] CB 12 at [39] of the Tribunal decision.
[8] CB 14 at [51] of the Tribunal decision.
[9] CB 14 at [52] of the Tribunal decision.
[10] CB 13 at [49] of the Tribunal decision.
On 4 November 2015, the delegate refused the applicant's protection visa application.[11] On 24 November 2015, the applicant applied for review to the Tribunal, which annexed a copy of the delegate's decision.[12] The applicant attended a hearing before the Tribunal on 15 November 2016.[13]
[11]CB 63 - 72.
[12] CB 42 - 56.
[13] CB 21 - 24.
On 6 December 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a visa.[14] In short compass, the Tribunal:
a)did not accept that the applicant was a witness of truth and did not accept his evidence about his problems in India, or his fear of returning to India as being credible;[15]
b)did not accept that the applicant was a member of the ABVP;[16]
c)did not accept that the applicant was assaulted by members of the ABVP, NSUI or anyone else;[17]
d)did not accept that the applicant was refused help by authorities, or to have been forced to continue to work for the ABVP;[18]
e)found that the applicant fabricated his claims for protection;[19]
f)did not accept the applicant's explanation in relation to inconsistencies in his evidence;[20]
g)found that the applicant's claims regarding his fear of returning to India because he is a “Patel” were fabricated and an attempt to further embellish his claim for protection;[21] and
h)did not accept, based on country information, that the applicant could not return to India due to the political situation in Gujarat and between India and Pakistan.[22]
[14] CB 7 - 20.
[15] CB 15 at [60] of the Tribunal decision.
[16] CB 15 at [62] of the Tribunal decision.
[17] CB 16 at [63] of the Tribunal decision.
[18] CB 16 at [64] of the Tribunal decision.
[19] CB 16 at [65] of the Tribunal decision.
[20] CB 16 at [66] of the Tribunal decision.
[21] CB 16 at [67] of the Tribunal decision.
[22] CB 16 at [68] of the Tribunal decision.
In conclusion, the Tribunal was not satisfied that there is a real chance that the applicant would suffer serious or significant harm upon returning to India,[23] and did not accept the applicant's evidence as credible.[24]
[23] CB 17 at [70] - [74] of the Tribunal decision.
[24] CB 17 at [70] and [72] of the Tribunal decision.
The present proceedings
These proceedings began with a show cause application signed and filed by the applicant on 5 January 2017. The applicant continues to rely upon that application. There are three grounds in the application:
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to India .
2.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
[3]. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the MigrationAct.
The application is supported by a short affidavit filed with it which I have received. I also have before me as evidence a bundle of relevant documents prepared by the Minister.
The applicant denied receipt of the bundle of relevant documents apparently sent to him at his nominated address for service by mail on 27 April 2017. He reminded me of this during the course of my oral reasons. I nevertheless received the bundle of documents as evidence to the extent relevant. As matters transpired, the only document of material relevance to this judgment was the Tribunal decision which the applicant had received and which he attached to his affidavit accompanying his application to the Court. I am satisfied that the applicant has not been prejudiced by the apparent non-receipt of the bundle of documents sent to him.
Only the Minister prepared written submissions in accordance with procedural orders made by a judge of this Court.
I read to the applicant the grounds of review raised in his application and invited oral submissions from him. The applicant said he did not wish to make any submissions. The applicant confirmed that the Minister’s submissions had been read to him by a friend. I invited submissions from the applicant in relation to the Minister’s submissions. Once again, the applicant declined to make any submissions.
As I noted in discussion with the applicant, he is not a lawyer, and the issues raised in the application are technical legal ones. It appears that someone has assisted the applicant to prepare the application. It also appears that the applicant is in no position to address the legal issues. To the extent that the application asserts that the Tribunal misunderstood or misapplied the relevant tests for protection in the Migration Act 1958 (Cth) (Migration Act), that claim must fail. It is plain from the Tribunal decision that the Tribunal understood the task that it had to perform and that the conclusions reached by the Tribunal were open to it on the material before it.
I am also satisfied that the Tribunal did not fail to comply with its obligation of disclosure under ss.424A or 424AA of the Migration Act. The Tribunal went through a process of oral disclosure at the Tribunal hearing in relation to what the Tribunal saw as adverse information drawn from what was apparently an identical protection application by some other applicant. It does not appear to me that there was any other material requiring disclosure to the applicant. I otherwise agree with the Minister’s submissions.
Ground 1
Section 36(2A) of the Migration Act states that a non-citizen will suffer significant harm if they will be arbitrarily deprived life, subjected to torture, subjected to cruel or inhuman treatment or punishment, subjected to degrading treatment or punishment or the death penalty will be carried out. The Tribunal correctly identified this provision at [6] and [11] of its decision, and extensively outlined the applicant's claims of “significant harm” at [12] - [25] of its decision.
The decision of the Tribunal to reject the applicant's claims made in his protection visa application, and the additional claims made by the applicant at the Tribunal hearing was open to it, in circumstances where the Tribunal found the applicant's evidence to be inconsistent, implausible and embellished.[25]
[25] CB 15 - 16 at [62] - [63] and [68] of the Tribunal decision.
Relevantly, the Tribunal:
a)did not accept that the applicant was assaulted by members of the ABVP, NSUI or anyone else;[26]
b)found that the applicant was unable to articulate any consistent or coherent account of his claim to protection during the Tribunal hearing, based on his response to the issue of his claims being identical to those made by another applicant in 2013.[27] The Tribunal found that the applicant therefore fabricated his claims for protection;[28]
c)found the applicant's evidence in respect of his fear of the ABVP and NSUI, and the claims of harm purported to have been suffered, were inconsistent;[29] and
d)did not accept, based on country information, that the applicant could not return to India due to the political situation in Gujarat and between India and Pakistan.[30]
[26] CB 16 at [63] of the Tribunal decision.
[27] CB 16 at [65] of the Tribunal decision.
[28] CB 16 at [65] of the Tribunal decision.
[29] CB 16 at [66] of the Tribunal decision.
[30] CB 16 at [68] of the Tribunal decision.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant.[31] The applicant's complaint may be with the Tribunal's findings, particularly in respect of the applicant's credibility, and to that extent he is merely inviting the Court to undertake impermissible merits review.[32] It follows that this ground of review must fail.
[31] SZOIG v Minister for Immigration [2016] FCA 547 at [33](2) citing Minister for Immigration v Guo (1997) 191 CLR 559 at 596 per Kirby J and Prasad v Minister for Immigration (1985) 6 FCR 155 at 169–70 per Wilcox J.
[32] SZOIG v Minister for Immigration (SZOIG) [2016] FCCA 176 at [27].
Ground 2
The relevant principles and the nature and extent of the requirements of s.424A and s.424AA have been considered in many cases and are relatively well settled.[33]
[33] SZQDR v Minister for Immigration (SZQDR) [2016] FCA 543 at [10] per Griffiths J.
Section 424A of the Migration Act relevantly provides that:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being replied on in affirming the decision that is under review; and
(c) invite the applicant to comment or respond to it.
(2) The information and invitation must be given to the applicant …
(a) … by one of the methods specified in section 441A
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information. …
Section 424AA of the Migration Act provides that:
Information and invitation given orally by Tribunal when applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reasons, for affirming the decision that is under review; and
(b) if the Tribunal does so - the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. …
The mandatory obligation in s.424A[34] is subject to the exceptions prescribed in ss.424A(2A) and (3) of the Migration Act, and a breach, if established, would most likely constitute a jurisdictional error and invalidate a decision of the Tribunal.[35] Relevantly, if s.424A(1) is engaged, ss.424A(2) directs the Tribunal's attention as to the methods of communication specified in s.441(A), which require transmission of such invitation by way of written document.[36]
[34] SZQDR at [30].
[35] SZQDR at [30] citing SAAP v Minister for Immigration [2005] HCA; 228 CLR 294 at [77], [173] and [208].
[36] SZBYR v Minister for Immigration (SZBYR) (2007) 81 ALJR 1190 at [12] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
In SZTGV v Minister for Immigration,[37] the Full Federal Court considered the operation of s.424A of the Migration Act, and developed “working questions” relevant to determining whether s.424A(1) had been breached.[38]
[37] SZTGV v Minister for Immigration (SZTGV) (2015) 229 FCR 90.
[38] SZTGV at [9] per Perram, Jagot and Griffiths J.
Question 1
First, the question to consider is whether there was information that the Tribunal considered that would be the reason, or part of the reason, for affirming the decision that is under review within the meaning of s.424(1)(a) of the Migration Act.[39]
[39] SZTGV at [9](a) per Perram, Jagot and Griffiths J.
The majority of the High Court in SZBYR[40] stated that: [41]
Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.”
[40] SZBYR per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[41] SZBYR at [15] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Relevantly, the word “information” has been observed as:[42]
not encompass(ing) the Tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps … .
[42] SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing with approval VAF v Minister for Immigration (2004) 206 ALR 471 at 476-477.
Therefore, in the context of s.424A of the Migration Act, “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review,[43] is related to the existence of evidentiary material or documentation.[44]
[43] SZQDR at [31] citing SZBYR at [16] - [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[44] Minister for Immigration v SZLFX [2009] HCA 31; 238 CLR 507 at [23].
The “information” before the Tribunal, in the form of evidentiary material or documentation, included:[45]
a)the applicant's application for a protection visa, including an additional statement with further details of his claims for protection;[46] and a copy of the applicant's Indian passport;[47]
b)a recording of the applicant's Departmental interview;[48]
c)the applicant's application for review to the Tribunal, attaching a copy of the delegate's decision record;[49]
d)oral evidence of the applicant at the Tribunal hearing;[50]
e)adverse information put to the applicant pursuant to s.424AA of the Migration Act;[51] and
f)various country information considered by the Tribunal.[52]
[45] CB 10 at [26] of the Tribunal decision.
[46] CB 125 - 162.
[47] CB 163 - 179.
[48] CB 10 at [26] of the Tribunal decision.
[49] CB 42 - 56.
[50] CB 10 at [26] of the Tribunal decision
[51] CB 14 at [54] of the Tribunal decision.
[52] CB 11 at footnotes 1 and CB 16 at footnote 3 the Tribunal decision.
The applicant has not stated what “information” the Tribunal should have provided him. It appears that the applicant's complaint relates to the fact that the Tribunal did not put him on notice that it proposed to reject his claims.[53]
[53] See SZQDR at [34] per Griffiths J. In that matter, the applicant had an identical ground of review, being Ground 1 to the present proceeding.
Nonetheless, it is possible that the applicant's claim could relate to the adverse information put to him pursuant to s.424AA of the Migration Act.[54]
[54] CB 14 at [54] of the Tribunal decision.
Question 2
Secondly, the question to consider is whether the “information” is excluded from s.424A(1) by operation of s.424A(3).[55] Whether “information” is excluded by s.424A(3) is ultimately a question of fact.[56]
[55] SZTGV at [9](b).
[56] SZTGV at [24].
I accept the Minister’s submissions in respect of the information as follows:
a)in keeping with relevant authority, the applicant's application for protection and accompanying statement does not constitute information excluded by s.424A(3)(b);[57]
b)the evidentiary material, before the Tribunal, including the applicant's oral evidence at the Tribunal hearing and the decision of the delegate which was provided to the Tribunal by the applicant, [58] was information given by the applicant for the purposes of the application and was such that it ultimately led to the Tribunal's decision. It is therefore “information” that is exempt from the mandatory invitation obligations under s.424A(1), as it falls under the exceptions in ss.424A(3)(b) and (ba) of the Migration Act;
c)the oral evidence provided by the applicant to the delegate, which is not excluded by s.424(3)(ba), was reviewed by the Tribunal.[59] However, that information was not a reason or part of a reason to affirm the delegate's decision, in circumstances where such “information” was evidence of “insufficiency of information”, or a “gap or lack of specificity in evidence”;[60]
d)the country information relied upon by the Tribunal, was not specifically about the applicant and is therefore excluded from the operation of s.424(1) of the Migration Act by s.424A(3)(a) of the Migration Act.[61]
[57] SZTGV at [21] citing SZBYR at [16].
[58] Relevantly, if a copy of the delegate's decision is attached to the application for review, it becomes “information” falling under the s.424A3(b) exception and does not need to be the subject of a s.424A(1) invitation. See, for example, Minister for Immigration v You [2008] FCA 241 at [12], [16], [22] and [26]; Minister for Immigration v Brar [2012] FCAFC 30 at [63] and [74]; and SZTWU v Minister for Immigration & Anor [2014] FCCA 1213 at [13].
[59] CB 10 at [37] and [38] of the Tribunal decision; s.424(3)(ba) of the Migration Act.
[60] See SZRRN v Minister for Immigration [2014] FCA 77 at [59] and SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing with approval VAF v Minister for Immigration (2004) 206 ALR 471 at 476-477.
[61] See, for example, SZOIG v Minister for Immigration & Anor [2016] FCCA 176 at [16].
Where the exceptions in s.424(3) apply, s.424A(1) does not apply[62] and the Tribunal was not required to issue any written invitation under s.424A of the Migration Act.
[62] SZTGV at [9](b).
In respect of the Tribunal's reliance upon the claims made by the applicant in his accompanying statement,[63] that statement did not contain “a rejection, denial or undermining of the (applicant's) claims to be (a person) to whom Australia owed protection obligations”.[64] Rather, the contents of the statement, if believed, might “have been a relevant step towards rejecting, nor affirming, the decision under review.”[65] Moreover, the reason why the Tribunal affirmed the decision under review, was the Tribunal's disbelief of the applicant's evidence due to recurrent inconsistencies.[66] As a result, such “information” did not engage s.424A.
[63] CB 16 at [65] of the Tribunal decision.
[64] See SZBYR at [17].
[65] See SZBYR at [17].
[66] See, for example, SZBYR at [17].
Further, it is clear that the Tribunal put adverse information to the applicant pursuant to s.424AA of the Migration Act.[67] The Tribunal is only excluded from any obligation under s.424A(1) pursuant to the operation of s.424(2A), which relevantly provides that:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
[67] CB 14 at [54] of the Tribunal decision.
The issue here is whether the Tribunal complied with s.424AA in respect of the adverse information put to the applicant pursuant to s.424AA of the Migration Act.[68]
Question 3
[68] CB 14 at [54] of the Tribunal decision.
Consideration of s.424AA of the Migration Act
Thirdly, the question is to consider whether the Tribunal complied with s.424AA(a) in respect of the adverse information.
In relation to the applicant's claim pursuant to s.424AA, the applicant claims that:
The Tribunal … made no attempt to comply with the requirements set out in section 424AA of the Act.
Recently, Griffiths J in SZQDR relevantly stated that the language in s.424AA(1), “in its context, is discretionary and is to be contrasted with the mandatory language in s424A”.[69] His Honour agreed with Lander J's comments in SZMMP v Minister for Immigration[70] that:[71]
Section 424AA is not cast in the mandatory terms of s424A. At least s 424AA(a) is not. Instead, s 424AA(a) permits the tribunal, where an applicant is appearing before it pursuant to an invitation under s 425, to orally give to the applicant clear particulars of any information that the tribunal considers would be the reason or part of the reason for affirming the decision that is under review. Section 424AA(a) is facultative. It permits the tribunal to adopt a different procedure to the procedure which is mandatory under s 424A. It is entirely discretionary.[72]
[69] SZQDR at [35].
[70] SZMMP v Minister for Immigration (SZMMP) (2009) 174 FCR 514.
[71] SZQDR at [35].
[72] SZMMP at [51].
Consistently with the reasoning of Griffiths J in SZQDR, the power conferred by s.424AA(1)(a) of the Migration Act is entirely discretionary,[73] and is enlivened (if at all) only if an applicant is appearing before the Tribunal because of an invitation under s.425 of the Migration Act.[74]
[73] SZQDR at [36].
[74] Section 424AA(1) of the Migration Act.
On 24 October 2016, the Tribunal invited the applicant to attend a hearing in accordance with s.425 of the Migration Act,[75] to give evidence and present arguments relating to the issues arising in the applicant's case, in circumstances where the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.[76]
[75] Section 425(1) of the Migration Act provides that “the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, unless the exceptions in s.425(2) apply.
[76] CB 26 - 34.
In reading the decision of the Tribunal, it is clear that the Tribunal explored the applicant's claims with him at the hearing, and put to him its concerns regarding the inconsistencies in oral evidence compared to the claims before the delegate of the Minister, as well as the new claims raised by the applicant at the Tribunal hearing.[77]
[77] CB 11 to 16 at [30] - [69] of the Tribunal decision.
The applicant has failed to point to any reviewable error in the exercise of the Tribunal's discretion in respect of s.424AA,[78] and has failed to identify the “information” he claims was not put to him for the purposes of s.424A of the Migration Act. Therefore, absent an obligation arising under s.424A, there can be no failure to comply with s.424AA.[79]
[78] See, for example, SZQDR at [36].
[79] SZVLY v Minister for Immigration (SZVLY) [2016] FCA 940 at [26] citing SZMCD v Minister for Immigration (2009) 174 FCR 415 at [2] per Moore J and [80] per Tracey and Foster JJ.
In respect of the adverse information put to the applicant pursuant to s.424AA of the Migration Act,[80] being the identical claims in RRT Case Number 1218605,[81] I accept the following:
a)the Tribunal gave clear particulars of the information to the applicant pursuant to s.424AA(1)(a), being a purported identical statement accompanying a protection visa application the subject of a differently constituted Tribunal decision in 2013;[82]
b)the Tribunal explained why the information was relevant to the review pursuant to s.424AA(1)(b)(i);[83]
c)the Tribunal orally invited the applicant to comment on or respond to the information pursuant to s.424AA(1)(b)(ii).[84] The applicant relevantly stated that “he had no comment”;[85]
d)the Tribunal advised the applicant that he may seek additional time to comment or respond to the information pursuant to s.424AA(1)(b)(iii).[86] After some deliberation, the applicant relevantly stated that “he had no comment”.[87]
[80] CB 14 at [54] of the Tribunal decision.
[81] CB 14 at [54] of the Tribunal decision.
[82] CB 14 at [54] of the Tribunal decision.
[83] CB 14 at [54] of the Tribunal decision.
[84] CB 14 at [55] of the Tribunal decision.
[85] CB 14 at [55] of the Tribunal decision.
[86] CB 14 at [55] of the Tribunal decision.
[87] CB 14 at [55] of the Tribunal decision.
In the circumstances, I find that the Tribunal complied with s.424AA, and therefore no breach of s.424A(1) is established.[88]
[88] SZTGV at [9](d).
Ground 3
The applicant claims that:
The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
This ground discloses no jurisdictional error on behalf of the Tribunal and is no more than a bare assertion.[89] It follows that this ground of review must fail.
[89] See, for example, SZVLY at [28] and [29].
For completeness, the findings of the Tribunal on the information before it were open to it, including its adverse credibility findings which are a matter par excellence for the Tribunal.[90]
[90] SZOIG v Minister for Immigration [2016] FCA 547 at [31](5) citing Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J.
I conclude that the applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,206 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 August 2017
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