AMP24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1148
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMP24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1148
File number: PEG 39 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 7 November 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a protection visa – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 422B, 423A, 424, 424A, 424B, 425, 425A, 426A, 441A, 441C, 476, 477
Migration Regulations 1994 (Cth) regs 4.35, 4.35D
Cases cited: CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 4 November 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
PEG 39 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMP24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed that decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act) and relies on a sole ground asserting that the Tribunal made a jurisdictional error by denying her procedural fairness.
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error and her application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in January 2016 on an Electronic Travel Authority visa.
On 30 March 2017 the applicant applied for a protection visa. In her protection visa application, the applicant claimed to fear harm because she is a lesbian born and raised in Malaysia, an Islamic country with a practice of Islamic law, and being a lesbian is illegal in Malaysia.
A delegate of the Minister refused to grant the applicant a protection visa on 26 October 2017.
On 27 October 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 20 January 2023 the Tribunal sent to the applicant an invitation to provide information pursuant to s 424(2) of the Migration Act. The applicant attended the Tribunal on or about 2 February 2023 and provided a response to the invitation, in which she provided further information in relation to her claims for protection and attached several country information reports. The applicant also requested that the Tribunal hear and take evidence from three witnesses.
On 3 November 2023 the Tribunal sent to the applicant an invitation to attend a hearing scheduled to be held on 22 November 2023. In her response to the hearing invitation, provided to the Tribunal on 12 November 2023, the applicant indicated that she did not request the Tribunal take oral evidence from any witnesses.
The applicant attended the hearing convened by the Tribunal on 22 November 2023 and gave evidence and presented arguments. At the hearing the applicant requested that the Tribunal take evidence from the three proposed witnesses referred to in the information response that she provided to the Tribunal in February 2023. The Tribunal considered the request but declined to receive evidence from those witnesses.
On 24 November 2023 the Tribunal sent to the applicant an invitation to attend another hearing, scheduled to be held on 7 December 2023. The Tribunal indicated in the hearing invitation that it had reconsidered her request and decided to permit the three witnesses to give evidence. The invitation also invited the applicant to submit written witness statements to the Tribunal for the three witnesses but the applicant did not do so.
The applicant attended the further hearing convened by the Tribunal on 7 December 2023. Two of the applicant’s witnesses attended the hearing by Microsoft Teams and gave evidence.
On 12 December 2023 the Tribunal sent to the applicant an invitation to comment on or respond to certain information which may lead the Tribunal to conclude that the applicant’s evidence and claims were not credible. The information in relation to which the applicant was invited to comment was information given by her witnesses at the hearing on the 7 December 2023. The applicant provided a response to the invitation on 26 December 2023.
On 4 January 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal’s assessment of the applicant’s credibility
The Tribunal found the applicant to be an unimpressive witness and considered that she was evasive and often feigned forgetfulness when confronted about inconsistencies or difficulties in her evidence and narrative. The Tribunal found the applicant’s narrative to be internally inconsistent, inconsistent with the evidence of the other witnesses, lacking in overall coherence and constantly evolving. In all the circumstances the Tribunal did not consider the applicant to be credible or reliable when giving evidence in relation to her claims for protection.
The Tribunal considered that the applicant’s lack of persuasiveness and coherent articulation stemmed from the absence of experiences as a lesbian rather than from any reluctance based on the subject matter. The Tribunal considered that the inconsistency and vagueness in the applicant’s narrative, coupled with a lack of detailed recollection emotional resonance which might be typically expected in genuine accounts, led to the conclusion that her claimed identity as a gay woman was not substantiated by the evidence presented.
The Tribunal was concerned about the delay in the applicant making some of her claims, the delay in her leaving Malaysia and the delay in her applying for protection, and considered that the applicant’s delay individually and cumulatively undermined any claim to have a genuine subjective fear of harm on account of her sexuality or for any reason.
The Tribunal’s consideration of the applicant’s claims based on sexuality
The Tribunal did not accept that the applicant was a lesbian. The Tribunal also did not accept that she was in a relationship with a woman she claimed to be in relationship with in Malaysia, that her family would seek to force her to marry, or that she was harmed by her father in the manner that she claimed or at all on account of her claimed relationship with a woman in Malaysia.
In reaching these conclusions, the Tribunal:
(a)considered that the applicant was vague and appeared unsure about the factual basis of her claimed relationship with a woman in Malaysia and gave evidence that was ever evolving and changing;
(b)considered that the applicant gave inconsistent evidence about the ‘significant event’ in the claimed relationship, namely, when her father allegedly found out about the relationship and confined her;
(c)considered aspects of the applicant’s narrative about the relationship and the harm she claimed to face from her father to be implausible;
(d)considered the applicant’s failure to mention this relationship before the first hearing to be difficult to understand, given that the relationship appears to have been the catalyst for the applicant’s claim to have been beaten and deprived of her liberty;
(e)found the applicant’s evidence about a possible relationship with a second woman in Malaysia to be inconsistent with that of one of the witnesses;
(f)considered it implausible that the applicant would post photographs about the relationship on social media if she experienced the harm that she claimed from her father, or that she would have forgotten about the relationship;
(g)considered that the applicant gave inconsistent information about a claimed relationship with a woman in Australia; and
(h)considered the applicant’s claimed participation in the LGBT communities, but did not accept that the applicant attended Pride in Sydney as she had claimed.
The Tribunal considered that the applicant’s claim to have a well-founded fear of persecution because she is a lesbian had been contrived and fabricated to secure a protection visa.
The Tribunal was not satisfied that the applicant was mocked, harassed and discriminated against at work or that men started to approach her, touch her at work or rape her because she is a lesbian or for any other reason. The Tribunal did not accept that she suffered from depression and anxiety because she was a lesbian and could not express herself. The Tribunal found that there was not a real chance that she would face serious harm because she was a lesbian or for any reason related to her sexual orientation.
The Tribunal’s consideration of the applicant’s claim to fear harm because she borrowed money from loan sharks
The Tribunal did not accept that the applicant borrowed money from a loan shark and found that there was not a real chance of serious harm because she had borrowed money from a loan shark. In reaching this finding, the Tribunal placed little weight on untranslated documentary evidence that was not fully legible and considered aspects of the applicant’s evidence to be implausible and inconsistent. The Tribunal did not accept the applicant’s explanations as to why she did not raise the claim earlier and, in circumstances where the Tribunal was satisfied that the applicant did not have a reasonable explanation for her failure to raise the claims about the loan shark in her visa application, it was required to draw an inference unfavourable to the credibility of the loan shark claim.
The Tribunal’s consideration of the applicant’s claim that she would be forced to marry
The Tribunal considered that the applicant’s evidence that she may be forced to marry by her aunt or uncle was particularly vague and lacking in detail. In circumstances where the alleged motivation of the applicant’s aunt and uncle to force her to marry was because she was a lesbian and the Tribunal rejected that the applicant is, or was, a lesbian, the Tribunal was not satisfied that there was a real chance the applicant would be forced to marry. The Tribunal, in reaching this conclusion, also had regard to credible country information in relation to laws protecting against forced marriage.
The Tribunal’s consideration of the applicant’s claim to fear harm as a non-practising Muslim
The Tribunal was not satisfied that the applicant faced a real chance of serious harm on account of being a non-practising Muslim, having regard to country information, the absence of any past harm, the lack of any claim to renounce Islam, or of atheism or apostacy.
The Tribunal’s consideration of the applicant’s claim based on her mental health
The Tribunal observed that the applicant’s claim that she suffered depression and anxiety when she was in Malaysia was because she could not express her sexuality. The Tribunal noted that it rejected her claim to be a lesbian and thus the basis of her claims to have suffered from depression and anxiety. The Tribunal also considered that any mental illness suffered by the applicant would not involve systematic and discriminatory conduct. Therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution based on her mental health.
The Tribunal’s consideration of the applicant’s claim based on the economic circumstances in Malaysia
The Tribunal was also not satisfied that the applicant would suffer serious harm on return to Malaysia due to the economic circumstances in Malaysia or need to start a new life, and did not accept that the economic circumstances in Malaysia would threaten the applicant’s capacity to subsist or would otherwise amount to serious harm. In reaching this finding, the Tribunal had regard to two diploma courses that it found the applicant completed in Malaysia, that she would be returning to Malaysia with the benefit of those qualifications and her work history in Australia, and that she was able to start a new life in Australia and would be able to do the same in Malaysia.
The Tribunal’s findings in relation ss 36(2)(a) and 36(2)(aa) of the Migration Act
Based on these findings, and considering the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act or that she was a refugee within the meaning of s 5H(1) of the Migration Act. The Tribunal was therefore not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act. Having regard to the same findings of fact, the Tribunal was not satisfied that the applicant would face a real risk of significant harm, as defined in s 36(2A) of the Migration Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. The Tribunal was therefore not satisfied that the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant filed her application for judicial review on 7 February 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following ground:
1. The applicant was denied procedural fairness.
The applicant was required, pursuant to an Order made by a Registrar of this Court on 26 March 2024, to file and serve at least 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence upon which she sought to rely. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed on 7 February 2024, annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 8 April 2024; and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 29 October 2024, confirming that the applicant had been served with a copy of the court book and the Minister’s submissions.
CONSIDERATION OF THE GROUND OF APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicant’s oral submissions
At the hearing before the Court the applicant submitted that the Tribunal member said she can go back to her country, but she cannot now do this. The applicant submitted that it has been eight years already and if she returns to Malaysia she will need to wear a hijab. She therefore feels depressed and she has anxiety and that is why she applied to this Court.
These submissions of the applicant invite the Court to review the factual merits of the Tribunal decision. As explained above, the Court does not have jurisdiction to engage in merits review of the Tribunal decision. At the hearing I explained to the applicant that the Court cannot consider for itself whether she meets the criteria for the grant of a protection visa and that the Court instead considers whether the Tribunal made a jurisdictional error. The applicant confirmed that she understood.
The oral submissions of the applicant otherwise express disagreement with the Tribunal decision. As indicated above, disagreement with a decision of the Tribunal is not, of itself, sufficient to establish that the Tribunal made a jurisdictional error.
The applicant’s oral submissions do not establish jurisdictional error.
Did the Tribunal deny the applicant procedural fairness?
The sole ground in the judicial review application asserts that the Tribunal denied the applicant procedural fairness. At the hearing I observed that there was no detail in the applicant’s ground and informed the applicant that she would have the opportunity to provide further information to the Court about what the Tribunal did or did not do that, in her view, amounted to a denial of procedural fairness. She did not refer to any denial of procedural fairness in her oral submissions to the Court. When I specifically prompted her to tell the Court why she believes that the Tribunal did not give her a fair hearing, the applicant responded that she thinks now that she cannot return home.
Notwithstanding that the applicant has not provided any meaningful details or particulars about why she believes the Tribunal denied her procedural fairness, I have considered whether the Tribunal complied with its procedural fairness obligations under the Migration Act.
Section 422B(1) of the Migration Act provides that Division 4 of Part 7 of the Migration Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. I accept the Minister’s submissions that the Tribunal complied with its procedural fairness obligations in Division 4 of Part 7 of the Migration Act.
In particular, I make the following observations in relation to the Tribunal’s compliance with its procedural fairness obligations in Division 4 of Part 7.
Section 424 of the Migration Act allows the Tribunal to get information that it considers relevant. On 20 January 2023 the Tribunal invited the applicant in writing to provide information pursuant to s 424 of the Migration Act. The Tribunal complied with the requirements of s 424 of the Migration Act, because:
(a)The written invitation was provided to the applicant by email sent to the email address in the applicant’s application for review, which was the last email address she provided to the Tribunal. Sending an email to the applicant at the last email address provided to the Tribunal by the applicant in connection with the review is a method of giving the document to an applicant permitted by s 441A(5) of the Migration Act. Accordingly, the written s 424 invitation was given to the applicant by one of the methods specified in s 441A, as required by s 424(3)(a) of the Migration Act.
(b)The invitation specified how the information could be given to the Tribunal, as required by s 424B(1) of the Migration Act.
(c)The invitation also required the information to be provided by 3 February 2023, which is 14 days after the applicant was deemed to have received the invitation (namely, at the end of the day it was transmitted: see s 441C(5) of the Migration Act), and was therefore within the period prescribed for the purposes of s 424B(2) of the Migration Act: see reg 4.35(3) of the Migration Regulations 1994 (Cth) (Regulations).
(d)The Tribunal had regard to the information provided by the applicant in making the decision on the review, as required by s 424(1) of the Migration Act.
In the circumstances of the present case, the Tribunal was required by s 425(1) of the Migration Act to 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. The Tribunal did this by way of an invitation sent to the applicant on 3 November 2023, inviting her to attend a hearing on 22 November 2023. The notice of the invitation to appear at a hearing informed the applicant of the day on which, and the time and place at which, the applicant was scheduled to appear, as required by s 425A(1) of the Migration Act. The notice of the invitation was given to the applicant by email sent to the last email address she provided in connection with the review and was therefore provided to her by one of the methods specified in s 441A of the Migration Act, as required by s 425A(2)(a) of the Migration Act. The period of notice was 19 days, which exceeded the period of notice prescribed by reg 4.35D(3) of the Regulations, as required by s 425A(3) of the Migration Act. The hearing invitation notice also explained to the applicant what would happen if she did not appear at the hearing and in this sense contained a statement to the effect of s 426A of the Migration Act, as required by s 425A(4) of the Migration Act.
The Tribunal invited the applicant to a further hearing, by way of a notice sent on 24 November 2023 for a hearing on 7 December 2023. This notice of hearing also complied with all of the requirements of s 425A of the Migration Act even though, strictly speaking, it did not necessarily need to do so, as the Tribunal was notifying the applicant of a resumed hearing and not issuing an ‘invitation’ to attend a hearing for the purposes of s 425 of the Migration Act: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 at [79], [82]; CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352 at [88].
There is nothing in the material before the Court to suggest that the invitation to attend a hearing was not a real and meaningful invitation: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33].
It appears from the material before the Court that the purpose of the resumed hearing was because the Tribunal reconsidered its decision not to take evidence from the three people the applicant nominated as witnesses. The applicant did not indicate within seven days of receiving the notice of the invitation to attend a hearing, dated 3 November 2023, that she wanted the Tribunal to take evidence from any person. The applicant did, however, indicate in her response to the s 424 invitation, sent to her in January 2023, that she wished to call evidence from three witnesses and it was appropriate for the Tribunal to have regard to this expressed wish, particularly in circumstances where the applicant reiterated this wish at the first hearing. It should be noted, however, that the Tribunal was not required to hear evidence from the witnesses nominated by the applicant just because she asked the Tribunal to do so. The applicant responded to the second hearing invitation indicating that two of the three people she previously nominated as witnesses would give evidence at the hearing and that the third person previously nominated as a witness would not participate in the hearing. There is no denial of procedural fairness in the Tribunal hearing evidence from the two witnesses, or by not taking evidence from the third witness, in circumstances where the applicant indicated in the response to the hearing invitation that the third witness would not participate in the hearing.
Following the second hearing, the Tribunal employed the mechanism in s 424A of the Migration Act to invite the applicant to comment on information provided to the Tribunal by her witnesses.
Section 424A of the Migration Act provides:
(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 relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(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.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
I am satisfied that the Tribunal complied with its obligations under the Migration Act in respect of the s 424A invitation, noting that:
(a)The invitation contained seven dot points setting out the particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review and explained to the applicant that the information was relevant because it undermined the credibility and reliability of the evidence of the witnesses which, in turn, undermined the reliability of the applicant’s evidence and her claims for protection. This complied with the requirements of s 424A(1)(a) and (b) of the Migration Act.
(b)The applicant was invited to give comments on or respond to the information in writing, as required by s 424A(1)(c) of the Migration Act.
(c)The invitation was given to the applicant by email sent to the last email address that she provided in connection with the review and was therefore sent to the applicant by one of the methods prescribed in s 441A, as required by s 424A(2)(a) of the Migration Act.
(d)The applicant was invited to provide her comments or response by 27 December 2023, which was 15 days after the applicant was taken to have received the invitation and was therefore more than the period prescribed by reg 4.35(3) of the Regulations for the purposes of s 424B(2) of the Migration Act.
There was no other information before the Tribunal that the Tribunal was required to put to the applicant pursuant to s 424A of the Migration Act. The Tribunal’s reasons for decision do, however, suggest that the Tribunal put many of its credibility concerns to the applicant and invited her to comment on them. This was not done pursuant to s 424A(1) of the Migration Act, as s 424A(1) does not apply to information provided by the applicant: see s 424A(3)(b) of the Migration Act. Instead, this was an additional step taken by the Tribunal to afford a greater level of procedural fairness to the applicant.
Section 423A of the Migration Act relates to how the Tribunal is to deal with new claims or evidence. The section requires that if an applicant raises a claim that was not raised before the primary decision or presents evidence that was not presented before the primary decision was made, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The Tribunal was not satisfied that the applicant had a reasonable explanation for failing to raise her claim to fear harm from a loan shark prior to the delegate’s decision and made an inference unfavourable to the applicant’s credibility pursuant to s 423A of the Migration Act. There is no denial of procedural fairness in the Tribunal’s approach.
The applicant has not established that the Tribunal denied her procedural fairness.
Did the Tribunal make a decision that was illogical, irrational or unreasonable?
The Minister in his written submissions, and in the oral submissions made by Counsel for the Minister, addressed whether the Tribunal decision was illogical or irrational or otherwise unreasonable. In circumstances where the applicant in her oral submissions expressed disagreement with the Tribunal decision, it would be prudent for the Court to also consider whether the Tribunal decision is illogical, irrational or unreasonable.
The legal principles relevant to illogicality, irrationality and legal unreasonableness in fact finding were summarised by the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30], where the Court said:
The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … 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 the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
In the present case, the Tribunal’s decision largely turned on its assessment of the applicant’s credibility. The Tribunal gave carefully considered and detailed reasons for its adverse credibility findings. The Tribunal summarised its approach to the assessment of credibility at [48] and [49] of its reasons, where it said (footnotes omitted):
48.Assessment of credibility is an inherently difficult task. The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. Inconsistencies in an applicant’s account may or may not be significant. I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little, if any, weight.
49.I must be cautious when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution. I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims. I am not required to uncritically accept any or all of the allegations made by an applicant. Any assessment of credibility I make must be legally reasonable.
The Tribunal’s approach to assessing the applicant’s credibility throughout its reasons was consistent with its summary of principles at [48] and [49] of its reasons. The Tribunal gave the applicant the benefit of the doubt when appropriate and did not rely on minor inconsistencies. In assessing the credibility of the applicant’s claims based on her sexuality, the Tribunal acknowledged that ‘a person’s sexual orientation is a deeply personal thing’: Tribunal’s reasons at [134]. The Tribunal gave clear and cogent reasons for its findings in relation to the applicant’s credibility and I accept the Minister’s submission that the Tribunal’s adverse credibility findings were open to it on the evidence before it.
In addition to considering the applicant’s evidence, the Tribunal had regard to documentary evidence, country information and the evidence of the applicant’s two witnesses. I am satisfied that the findings made by the Tribunal throughout its reasons were findings that were open to it on the evidence and that there was a logical connection between the evidence before the Tribunal and the inferences or the conclusions drawn.
The Tribunal’s approach to its assessment of the applicant’s credibility was not legally unreasonable and its findings and decision were not illogical or irrational.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, it follows that the application to this Court for judicial review of the Tribunal decision must be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 November 2024
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