AFI21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 266
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFI21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 266
File number(s): SYG 140 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 26 February 2025 Catchwords: MIGRATION – Judicial Review – Protection visa – Whether the Tribunal failed to afford the applicant procedural fairness – Whether the tribunal unreasonably exercised its power by its failure to make necessary inquiries relevant to the issues in the review – Application dismissed Legislation: Migration Act 1958 ss 65, 427(1)(b) Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration v Le [2007] FCA 1318; (2007) 164 FCR 151
Perera v Minister for Immigration (1999) 92 FCR 6
Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476
Singh v Minister for Immigration (2001) 115 FCR 1
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Soltanyz and v Minister for Immigration [2001] FCA 1168
SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 6 February 2025 Place: Parramatta Solicitor for the Applicant: Self-represented Litigant Solicitor for the Respondents: Ms K. Evans, Sparke Helmore Solicitor for the Respondents: Submitting appearance save as to costs ORDERS
SYG 140 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AFI21
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application filed on 25 January 2021 is dismissed.
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
JUDGE SKAROS
INTRODUCTION
By application filed on 25 January 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 21 December 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The applicant is a 64-year-old male citizen of China. He was granted a visitor visa offshore in May 2016 and first arrived in Australia in October 2016. He departed Australia for short periods in January 2017 and April 2017. He last entered Australia on 21 April 2017. He applied for, and was granted, a further visitor visa onshore.
The applicant applied for a protection visa on 27 October 2017. He claimed that in April 2015 he had a business dispute with a man named Mr Wu. The dispute was registered in the District Court in November 2016. Mr Wu made threatening phone calls and forcibly occupied the applicant’s home in China in May 2017. He was threatened by people assigned by Mr Wu. As they were powerful gangs, his calls to police and negotiations were useless. He fears returning to China.
On 17 May 2018, the applicant attended an interview with the delegate to discuss his claims: CB 54-55; 76. At that interview, he provided further information about his immigration history and his personal circumstances. He claimed that the ‘triad’ had threatened his mother and brother in China. He could not return because of the gangsters from whom he borrowed money to invest in a warehouse. He could not repay the loan so had to use his house as security. His house was eventually taken by the gangsters. He said contact from the gang had stopped since he came to Australia. He cannot relocate to another area in China because of endemic corruption. In response to the delegate putting to him that he had indicated in his son’s student visa application that he (the applicant) needed to stay in Australia to support his son, but made no mention of being in danger, the applicant said that his agent told him to say this.
On 23 May 2018, the applicant provided documents in support of his application including a statutory declaration in which he claimed, amongst other things, that he could relocate to China and start his life again, he is confident he has the ability to repay his debts in the near future, but he cannot risk his life because he is unsure if the evil forces have been removed completely: CB 56-68.
The delegate refused the grant of the protection visa on 17 January 2019 and on 5 February 2019 he applied to the Tribunal for review of that decision.
On 5 November 2020, the applicant was invited to appear before the Tribunal by telephone on 24 November 2020. The applicant attended that hearing and was assisted by an interpreter in the Cantonese and English languages.
At the first hearing, the applicant sought an adjournment so he could provide additional documents. The Tribunal agreed to adjourn the review, and a further hearing was scheduled for 21 December 2020 to enable the applicant to provide further information in support of his claims.
On 14 December 2020 and 17 December 2020, the applicant provided further supporting documents to the Tribunal: CB 128-136; 139.
On 21 December 2020, the applicant attended a resumed hearing and was assisted by an interpreter in the Cantonese and English languages at the hearing: CB 124-127; 140-142.
The Tribunal made an oral decision at the conclusion of that hearing: CB 144-147.
The applicant requested a written statement of reasons on 25 January 2021, which was provided to him on 15 February 2021.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations, either because he satisfied the refugee criterion or the complementary protection criteria.
The Tribunal set out the personal circumstances of the applicant, noting that he was married but had divorced in 2016 and that he has two adult children who were living in Australia.
The Tribunal said it considered the Refugee Law Guidelines and Complementary Protection Guidelines and information assessments of China by the Department of Foreign Affairs and Trade. The Tribunal also considered the evidence before the delegate, the evidence provided by the applicant at the Tribunal hearing on 24 November 2020, and the evidence provided after the adjourned hearing on 24 November 2020, namely, the photograph, written statement by the applicant dated 10 December 2020, and the letters from his daughter and friend.
The Tribunal considered the applicant’s claim that he borrowed money for his business, that his house was seized and that he was still being pursued for money. The Tribunal was concerned about the applicant’s claim that he was still being pursued considering the forced sale of the house, from which the funds would have been used to pay off the debt.
The Tribunal considered the applicant’s evidence that there were two court orders; in 2017 and 2018, which were in favour of the lender and forced the sale of the applicant’s home. The Tribunal was prepared to accept this evidence (of the court orders and forced sale) despite the absence of documents to substantiate those claims. The Tribunal did not accept that the applicant’s mother or younger brother had been threatened about the debt.
In considering whether there was any remaining money owing after the seizure and forced sale of the property, the Tribunal did not accept that there was. The Tribunal considered that the applicant was provided with multiple opportunities before the delegate and the Tribunal, in November and December 2020, to substantiate these claims with documentation pertaining to the loan. The Tribunal also considered that the evidence of threats to the applicant and his family were vague and largely unsubstantiated. As such, the Tribunal was not satisfied there was any amount owing to the lender, and that there was no rational reason for the lender to continue to pursue and threaten the applicant.
Ultimately, the Tribunal was not satisfied that there was a real risk that the applicant would be pursued by the lender if he returned to China. The Tribunal concluded that applicant did not meet either the refugee or complementary protection criteria and affirmed the delegate’s decision not to grant the protection visa.
APPLICATION TO THIS COURT
On 25 January 2021, the applicant filed the originating application with this Court which advanced two grounds. Also filed was an affidavit of Siyang Dai of Juris Cor Legal, sworn on 25 January 2021, which enclosed a copy of the Outcome of Review (oral decision) made on 21 December 2020 and the letter to the Tribunal requesting a written statement of reasons. As the written statement of decision and reasons is enclosed in the Court Book, it was not necessary to take this affidavit into account.
On 27 April 2021, a Court Book was filed by the Minister in compliance with an order made by a Registrar of this Court on 19 March 2021.
The order made by the Registrar also provided for the applicant to file and serve an amended application with proper particulars and any affidavit evidence on or before 8 June 2021, and written submissions at least 28 days before the hearing. Nothing was filed by the applicant.
On 22 January 2025, the Minister filed an outline of submissions and an affidavit detailing the Minister’s attempts to contact the applicant and/or his solicitors in relation to the matter.
The matter was listed for final hearing on 6 February 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 9 December 2024.
Prior to the hearing, on 29 January 2025, the applicant’s solicitors filed a copy of a Notice of Intention to Withdraw as a Lawyer (Notice of Intention). On 3 February 2025, the applicant’s solicitors filed an updated Notice of Intention, with updated details for the applicant. On 4 February 2025, this was filed and served on the applicant by post.
On 5 February 2025, the applicant’s solicitors filed an affidavit of Yu Chen, the Principal Solicitor of Juris Cor Legal, (Chen Affidavit) setting out the firm’s dealings with the applicant and their attempts to inform him of their intention to withdraw:
(a)On 29 January 2025, a Notice of Intention was filed;
(b)On 31 January 2025, the Notice of Intention was served on applicant by express post and email;
(c)On 5 February 2025, a call was made to the applicant informing him of listing for final hearing; and
(d)On 5 February 2025, a text was sent to the applicant informing him of the date and time of the final hearing and of their intention to withdraw representation.
The Chen affidavit also set out the reason for the firm’s withdrawal of representation being that the applicant had not paid the legal fees in the matter.
At the hearing, Ms Wang appeared before the Court and sought leave for Juris Cor Legal to withdraw as the applicant’s legal representative. Ms Wang relied on the Chen Affidavit, which was taken as read and in evidence at the hearing. The Court granted leave for Juris Cor Legal to withdraw as the applicant’s lawyers.
The applicant attended the hearing in person and represented himself. He was assisted by an interpreter in the Cantonese and English languages. Ms Evans, a solicitor, appeared on behalf of the Minister. The Court Book was tendered into evidence and marked exhibit CB.
The Minister provided the applicant with a folder containing copies of all the material filed with the Court in respect of his application for judicial review.
The applicant confirmed at the hearing that he would be representing himself, however, submitted that he did not have time to prepare documents for the hearing as his solicitors only informed him the day prior. When asked what documents he wanted to provide, the applicant said court documents he had received from China. When asked if those documents were before the Tribunal, the applicant said they were not as he had received them one year after the Tribunal made its decision. The Minister submitted they would object to the admissibility of these documents on the basis that they were not before the Tribunal when it made its decision.
While the applicant did not make a formal request to adjourn the hearing, the Court nevertheless considered whether it should do so given the late withdrawal of his solicitors. Having regard to the applicant’s submissions, the Court did not consider that there would be any utility in adjourning the hearing to enable the applicant to prepare and file court documents he had received from China which were not before the Tribunal at the time of its decision. Such documents would have been inadmissible and there is nothing before the Court which suggests that the applicant would be in a better position to present his case if the hearing were to be adjourned. For these reasons, the Court decided to proceed with the hearing as scheduled.
Being mindful that the applicant was now unrepresented, the Court took the time to explain to him the role of the Court, the material before it to which it would have regard and the grounds of judicial review that were advanced by his legal representatives in the originating application. The Court informed the applicant that it would carefully consider the material before it and any matters raised by him about the Tribunal’s decision or the manner in which the Tribunal conducted the review.
The Court was also greatly assisted by the Minister’s solicitor who, in addition to preparing a file containing all the documents relevant to the proceedings, also took the time to take the applicant through the material in the Court Book, including the claims made in his application for protection, the supporting documents provided to the Department and the Tribunal and the reasons given by the Tribunal for affirming the delegate’s decision. The solicitor also explained in detail the Minister’s position in relation to each of the grounds raised in the judicial review application and the matters raised by the applicant at the hearing before the Court.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
GROUNDS OF REVIEW
The application for judicial review filed on 27 January 2021 contains two grounds of review (without alteration):
1.The Tribunal failed to afford the Applicant procedural fairness as the Applicant was denied an opportunity to provide essential written evidence in relation to the outstanding amount of money owed to Wu Yanfei.
Particulars
a. The Applicant gave written and oral submission to the Tribunal that he was alleged to owe a substantial amount of debts to Wu Yanfei, even after the transfer of ownership of his property located in the CBD of Qingyuan City, China. The Tribunal acknowledged the Applicant's submissions, but was unsatisfied with the missing written evidence submitted.
b. The Applicant at the hearing was willing and able to provide those written evidence, including four Court Judgements issued by the Chinese court, to support his oral evidence of the outstanding debts which are likely to lead to his persecution if he returns to China, but the Tribunal denied him the opportunity to submit those evidence.
c. The Tribunal did not in any manner inform the Applicant before the hearing that those written evidence is of essential relevance to this matter, and proceeded to make the decision adverse to the Applicant's interests.
d. The Applicant was self-represented at the hearing with limited legal knowledge and English language ability. Had the Applicant knew about the essentiality of those written evidence in his case, he would have gathered those evidence to present to the Tribunal by all means.
2.The Tribunal unreasonably exercised its power as it failed to make necessary inquires with specification of the issues in this matter.
Particulars
a. As mentioned above, the Tribunal noted and acknowledged the Applicant's submissions as to the substantial amount of debts, but did not make further necessary inquiries as to the details of the alleged debts and instead simply gave no weight to the Applicant's submissions even though there was no issue of the Applicant's credibility raised by the Tribunal.
b. Such exercise of power by the Tribunal in the decision-making process was so unreasonable that no reasonable person would have so exercised the power.
The Applicant’s Oral Submissions
As to ground one, the applicant conceded that there was nothing unfair about the Tribunal’s decision and he told the Court that there were documents that he wanted to provide to the Tribunal in support of his application but that he could not provide the documents due to the COVID-19 pandemic which prevented the documents from being posted from China. Notwithstanding, the applicant stated that these documents were not received or available until about one year after the Tribunal had already made its decision.
When invited by the Court to speak to his second ground, the applicant did not advance any submissions that were relevant to the alleged jurisdictional error; the applicant stated that the delegate and Tribunal told him that he did not provide enough evidence to substantiate his claims but that he did not receive the relevant documents until after the Tribunal’s decision.
In his reply submissions, the applicant informed the Court of details regarding his claim and circumstances not relevant to the judicial review application. This included the migration status of his family (who reside in Australia), characteristics of the person he owed money to, the amount of money he owed, that it was dangerous for him to return to China and his motivation for seeking protection in Australia rather than an alternate visa pathway.
Ground one
By ground one the applicant alleges that the Tribunal failed to afford him procedural fairness as he was denied the opportunity to provide written evidence in support of his claim that he had an outstanding debt to a money lender in China. It was also contended that the applicant, who was self-represented with limited legal knowledge and English language, was not informed of the relevance of that written evidence, the absence of which was essential to the Tribunal’s decision.
As noted by the Minister, the Tribunal had the power under s 427(1)(b) of the Act to adjourn the review. It is well established that the power, which vests a discretion in the Tribunal, must be exercised reasonably having regard to the facts and circumstances of the case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
At [13] of its reasons, the Tribunal explained why, having already agreed to an adjournment of the review one the month prior, it decided not to grant the applicant any further adjournments to enable him to obtain further documents. The Tribunal noted that towards the end of the hearing the applicant requested a further adjournment to obtain more documents as his mother had been sick in China and could not get the documents to him. The Tribunal considered that the applicant had been provided with a satisfactory amount of time to provide documents in support of his case. It further noted at [32], that the applicant had been given ample opportunity before the delegate and the Tribunal to substantiate his claims with the documentation relating to the loan.
The Minister submitted that the applicant was also on notice, from the first hearing invitation, that he should provide, at least 7 days before the hearing, all documents he intended to rely on to establish that he met the criteria for the visa (CB 98). The applicant was also on notice from the delegate’s decision record of the issues in the review that it was for him to provide evidence in support of his claim to fear harm in China because of money owed: Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187]; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]–[16].
The Minister further submitted that the Tribunal (at [29]) had in fact accepted the applicant’s oral evidence that there were two court orders or judgments obtained against him in China by the lender despite those documents not having been provided. The Tribunal considered at [33] that the lender had used the legal mechanisms available to seize the applicant’s home.
Whilst the Tribunal accepted that there were court orders or judgments obtained against the applicant in China which forced the sale of his home, it did not accept that there was an outstanding debt against him. The Tribunal gave several reasons for why it so found. The Tribunal considered that the applicant gave no evidence which suggested there had been any effective communication from the lender regaling an outstanding debt since the house was seized and sold. It also found the applicant’s evidence about him and his family being threatened since the sale of the house to be vague and largely unsubstantiated.
In refusing to grant the applicant a further adjournment, the Tribunal explained that the applicant had been given ample opportunity to substantiate his claims. The Tribunal considered the applicant’s request for the second adjournment and provided an intelligible justification for why it had refused to grant any further adjournments.
The Court accepts the Minister’s submission that the decision to refuse the further adjournment was open to it and that it was not obliged to afford the applicant every opportunity to put his best case forward: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [202].
Having regard to the totality of the circumstances and the Tribunal’s reasons, it cannot be said that the Tribunal acted unreasonably in refusing to grant the applicant a further adjournment of the review.
As to the applicant’s complaint that he was not informed of the importance of written evidence, this is not made out. At [24] of its decision, the Tribunal stated:
The tribunal at that hearing last month raised the same concern as the delegate did in relation to the seizure of the house. That concern was essentially that if the lender had seized the house and forced its sale then the money obtained from that sale would have set off all of the debt. The tribunal made it clear to the applicant that there is no documentation and the tribunal would have been assisted with documentation to understand the true nature of the transaction and what was left owing. At the request of the applicant at the November hearing, the tribunal granted an adjournment for approximately one month so that he could obtain any such further documentation to support his claim.
It is plain on the evidence, that the Tribunal did inform the applicant, at the first hearing, that there were no documents to support his claim about an outstanding debt and that provision of those documents would have assisted it in understanding the true nature of the transaction. An adjournment of the review was granted for the applicant to provide further documentation, however, what was provided did not assist the Tribunal in ascertaining whether a debt remained outstanding. The Court accepts the Minister’s submission that the Tribunal’s task did not extend to telling the applicant what evidence he needed to provide to support his claims: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 (SGLB); cf Minister for Immigration and Citizenship v Le [2007] FCA 1318 (Le); SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592.
It was also asserted that the applicant, who was self-represented, had limited legal knowledge and was not proficient in the English language, and was denied procedural fairness by the Tribunal. The evidence before the Court does not suggest that the applicant was denied a real and meaningful opportunity to give evidence and present arguments at the hearing. The applicant was assisted by an interpreter in the Cantonese and English languages at hearings before the Tribunal: CB 120, 140. As submitted by the Minister, there is no evidence before the Court which suggests that the standard of interpretation was so inadequate that the applicant was prevented from giving evidence to the Tribunal or that any errors made in the interpretation at the Tribunal hearing were material to a conclusion of the Tribunal and adverse to the applicant: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6; Soltanyz and v Minister for Immigration [2001] FCA 1168; WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [65].
A fair reading of the Tribunal decision demonstrates that the applicant was given an opportunity to provide evidence about his claims and that the Tribunal discussed those claims with him at length. The Tribunal also raised with the applicant its concerns about aspects of his claims and the applicant was given an opportunity to respond to those concerns: See [18]-[24], [29]-[31].
There is no evidence before the Court which suggests that there was any failure on the part of the Tribunal to comply with its procedural fairness obligations.
For these reasons, ground one does not establish jurisdictional error.
Ground two
By ground two, the applicant alleges an unreasonable exercise of power on the part of the Tribunal by its failure to make necessary inquiries relevant to the issues in the review. The inquiry that the Tribunal failed to make is said to relate to the details of the alleged debts. The applicant also takes issue with the Tribunal placing no weight as to the applicant’s submissions in that regard, notwithstanding it made no findings as to his credibility.
The Minister contended that the duty of the Tribunal was to review a Part 7 reviewable decision and not to make inquiries: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [20], [22]. It was nevertheless acknowledged that while there was no general duty on the Tribunal to make inquiries, such an obligation may arise in ‘rare or exceptional circumstances’: Le (2007) 164 FCR 151 at [60]. It was contended that there was no failure on the part of the Tribunal to make an obvious enquiry about a fact, which could be easily ascertained: Minister for Immigration and Citizenship vSZIAI [2009] HCA 39 at [25].
The Minister contended that it was for the applicant to make out his case before the Tribunal and that he had been given an opportunity (by the Tribunal) to do so. It was further contended that there was no evidence that the applicant had requested the Tribunal make inquiries into his alleged debt and that the material before the Tribunal also indicated no easy or obvious way for the Tribunal to make inquiries pertaining to the outstanding debt. It was further contended that the Tribunal had accepted the applicant’s claims that his house had been seized and that its ownership was transferred through ‘some court order’: [31] of the Tribunal’s decision, and as such there was no need for to make further enquiries about matters it had already accepted.
The Tribunal accepted that there was a court order which forced the sale of the applicant’s house in China. What was not accepted by the Tribunal was the applicant’s claim that a debt remained outstanding. The applicant was on notice from the delegate’s decision (and was given an opportunity) to provide documentation in support of his claims. He did not provide documentation about the outstanding debt by the time the Tribunal made its decision. Further, the Tribunal expressed some concerns about the evidence given by the applicant regarding the nature of the transaction, the amount of the outstanding debt and the communication (including the claimed threats received by the applicant and his family) from the lender regarding the debt since the forced sale of the house.
The Court is not persuaded that, in the circumstances of this case, the Tribunal had failed to make an ‘obvious’ inquiry about the outstanding debt or that the information about the claimed debt was ‘easily ascertainable’. If it could have been so easily ascertained, then surely the applicant would have been able to provide such information to the Tribunal when given the opportunity to do so.
The obligation did not lie with the Tribunal to investigate the applicant’s claims, and it was for the applicant to provide evidence to substantiate his claims for protection. There was no error on the part of the Tribunal in proceeding to determine the review on the evidence before it.
The Tribunal, after having considered the evidence before it, concluded at [33] that it was not satisfied that the applicant had an outstanding debt in China or that he was being pursued for that debt by the lender who had seized and took possession of his home. This finding was open to the Tribunal on the evidence before it and for the reasons it gave. It was not necessary for the Tribunal to raise concerns (or make findings) about the applicant’s credibility, as suggested by the applicant, to conclude that it was not satisfied on the evidence before it that the applicant had an outstanding debt in China.
It cannot be said that the Tribunal was unreasonable in not making the inquiries suggested. Nor can it be said that the Tribunal’s findings and conclusions were not open to it.
For these reasons, ground two does not establish jurisdictional error.
CONCLUSION
As neither of the grounds raised by the applicant establish jurisdictional error, the application must be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 26 February 2025
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