AOR24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 70
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 70
File number(s): ADG 69 of 2024 Judgment of: JUDGE GERRARD Date of judgment: 29 January 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether decision was made too quickly – whether failure to consider claims – whether applicant given sufficient opportunity to present his case – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 5J(1)(a), 36, 36(2), 36(2)(a), 36(2)(aa), 36(2A), 56, 424A, 425, 425A, 476
Migration Regulations 1994 (Cth) sch 2
Cases cited: ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Craig v State of South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kopalapillai v Minister for Immigration and Multicultural Affairs(1998) 86 FCR 547
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZKRT [2013] FCA 317
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Pabbi v Minister for Home Affairs [2019] FCCA 1750
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 29 November 2024 Date of hearing: 13 December 2024 Place: Adelaide Applicant: Self-represented with the assistance of a Tagalog interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 69 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOR24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The application be 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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicant is a citizen of the Philippines. He first arrived in Australia on 4 September 2004 (Court Book (CB) 59) as the holder of a temporary visa, which was valid until a later date in September 2004 (CB 141). He remained in Australia, overstaying his visa after that time (CB 141). On 15 October 2023, the applicant lodged an application for the visa (CB 1-27).
On 19 October 2023, a delegate of the Minister wrote to the applicant requesting further information about his protection claims (CB 35-44). The applicant provided a response in compliance with the delegate’s request (CB 45-49).
On 30 October 2023, a delegate of the Minister refused to grant the applicant the visa (CB 50-61).
On 1 November 2023, the applicant applied to the Tribunal for review of the delegate’s decision (CB 62-68).
On 20 November 2023, the applicant was invited to attend a hearing scheduled for 5 December 2023 (CB 84-86).
On 25 November 2023, the applicant provided “Appointment of Authorised Recipient” and “Change of Contact Details” forms to the Tribunal, appointing his sister as his authorised recipient (CB 105-108).
On 5 December 2023, the Tribunal wrote to the applicant advising that the hearing scheduled for that same day was postponed (CB 109-111). Later that day, the Tribunal advised that the hearing had been rescheduled for 13 December 2023 (CB 116-119).
On 13 December 2023, the applicant attended the hearing in person and was assisted by a Tagalog interpreter (CB 133).
On 9 January 2024, the Tribunal provided written reasons of its decision to affirm the delegate’s decision not to grant the applicant the visa (CB 139-153).
On 12 February 2024, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal set out the relevant criteria for a protection visa, as set out in s 36 and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (at [4]-[8]).
The Tribunal accepted that the applicant’s receiving country is the Philippines (at [11]).
The Tribunal outlined the applicant’s claims that he first arrived in Australia on 4 September 2004 on a temporary visa that was valid until a later date in September 2004 but remained in Australia and overstayed his visa after that time. The Tribunal set out that the applicant lodged an application for a protection visa on 15 October 2023 (at [12]).
The Tribunal set out information given by the applicant in respect of his background (at [13]-[14]). It then set out evidence that was before the Department in his protection visa application dated 15 October 2023 as follows (at [15]) (without alteration):
•Why he left – he was a witness to a political killing when his father was Barangay Captain of their town in Obrero, Cabanatuan City, Nueva Ecija. In April 1985 the chief of police of their Barangay (local town), named Mr A was killed by armed men in their house while he was taking refuge and seeking help from his father. Mr A was a very influential man and politically well- connected in their province. After his death, Mr A’s family suspected his father of ratting on him. Members of Mr A’s family formed a gang, called ‘X gang’, which aimed to kill all those who had a hand in the killing of Mr A. They said that his father failed to protect Mr A and suspected him of dobbing in Mr A to his enemies. He and his father went into hiding in Sablayan, Mindoro but they were found out. He left the Philippines and sought work in Saudi Arabia to avoid the danger to his life. When he came back, he still received threats to his life. The X gang had already killed many people, and they became more aggressive when Rodrigo Duterte became president of the Philippines.
•Did he experience harm? - Yes. He received harassments and threats to his life. From the X gang who have connections to the police.
•Did he seek help after the harm? - Yes. They asked for help from the city mayor of Cabanatuan City, but he told them to avoid the X gang by leaving the country.
•Did he move to seek safety? - He worked in Saudi Arabi, but it does not accept refugees. He came back to the Philippines, but still experienced the threats, so he left again to nearby Taiwan. But when he came back to the Philippines, he found out that the X gang were still hunting him. He came to Australia, found this to be a very peaceful country, so he stayed.
•What he thinks will happen if returns? - He might get killed if not by the X gang, by its enemies who are aware he witnessed the killing of the chief Mr A.
•Does he think he will be harmed or mistreated if he returns? - He knows that he could certainly be killed because the family of the victim are still hunting those who they thought failed to help them. And the killers have also been after him because he was a witness to the crime.
•Does he think the authorities will protect him if he goes back? - The authorities could not help him because the people who want to harm him are well connected and seemed to have a licence to kill from the political powers in the Philippines. He thought after many years in Australia, those people will forget about him, but he heard recently that the situation of vindictive killings are worse than when he last left the country.
•Will he be able to relocate within the country to an area where he won’t be harmed? - Have relocated many times, but they were found out too easily because of the influence of the X gang, and because he is being hunted by both sides, the chief who died and his killers.
The Tribunal outlined that the Department wrote to the applicant on 19 October 2023 and requested further information in respect of his protection claims under section 56 of the Act, to which the applicant provided a response (at [16]). The Tribunal confirmed that the applicant was not invited to an interview with the delegate (at [17]).
The Tribunal set out that the applicant lodged his application for review with the Tribunal on 1 November 2023, and provided further information to the Tribunal in support of his application as follows (at [18]):
•Letter of support dated 17 November 2023 from his brother, Mr B, in Australia, together with identity documents.
•Statutory declaration dated 18 November 2023 from his sister, Mrs C, in Australia, together with an identity document and a bank account statement.
•Sworn statement dated 23 November 2023 from a Mr D, in the Philippines, together with identity documents and a photo of Mr D holding his statement, and a typed transcription of Mr D’s handwritten statement.
The Tribunal then set out its analysis, reasons and findings in respect of the applicant’s claims (at [20]-[36]).
The Tribunal firstly set out the applicant’s claim that he left the Philippines because he was in fear as a witness to the killing of Mr A, and that if returned, the killers of Mr A would be looking for him. It also set out that the applicant alleged that, if returned, he would have no one there to support him in relation to his health, as he takes medication for high blood pressure and cholesterol, or to support him generally (at [20]).
Ultimately, the Tribunal did not find the applicant’s evidence credible, as he claimed that Mr A’s murder took place in April 1985. The Tribunal found that any potential harm from that incident had long since dissipated, as anyone involved in that murder would not still be seeking to kill or take revenge on any witnesses or those suspected of involvement (at [21]-[22]).
The Tribunal also took issue with other aspects of the applicant’s evidence, namely (at [23]):
(a)In response to questions asked by the Department, the applicant stated he didn’t know any of the people who were looking for him or who were in X gang, however at the hearing, he identified three members of Mr A’s family who were looking for him, so the Tribunal found this evidence to be inconsistent;
(b)That his family had not faced any harm, harassment or interactions with anyone in relation to the killing or who were looking for him, as the Tribunal did not find it credible that if persons were looking for the applicant over the course of 19 years after he left the Philippines, they would not have approached his family;
(c)At the beginning of the hearing, the applicant stated that his wife and son were living in the same house in Cabanatuan as he had lived until 1985, but later during the hearing, he indicated that his wife and son had moved to another barrio, which the Tribunal found to be inconsistent;
(d)The Tribunal did not consider it credible that the applicant has been in Australia since 2004, and claims that at least once a year, Mr E would warn him that the family of Mr A were still looking for him, but that he did not apply for a protection visa until October 2023 and made no enquiries about options for remaining in Australia between 2004 and 2023; and
(e)The Tribunal noted some level of corroboration for the applicant’s claims provided by Mrs C and Mr D, however it did not attach weight to either of their evidence, as Mrs C is the applicant’s sister, and the applicant said that his contact with Mr D in about September 2023 was the first time he had been in contact with him since 2004, which the Tribunal considered to be more than coincidental.
Noting the issues the Tribunal raised above, it did not accept the applicant’s claims in relation to him and his father being present at the murder of Mr A in April 1985, nor did it accept that members of Mr A’s family, the X gang, the killers of Mr A, or any other persons have continued to look for him since that time. Following from these findings, it also did not accept that the applicant was of adverse interest to anyone in the Philippines while he has been in Australia, or that he may be of adverse interest to, or faces a real chance of suffering harm, if he were to return to the Philippines (at [24]).
In relation to the applicant’s claims about having no one to support him in relation to his health, the Tribunal relied on country information. This country information set out that the Philippines delivers health care through both public and private facilities, that the Philippines Constitution requires the state to make health care available at an affordable price, and that in 2019, the former President introduced a Universal Healthcare Act extending coverage of the national health insurance scheme to all Filipinos. However, despite this, many Filipinos still struggle to access adequate healthcare, and the quality of healthcare facilities and services are variable (at [25]-[26]). Ultimately, the Tribunal accepted that there may be challenges for the applicant in accessing medical treatment and healthcare due to variable access and service availability issues, but that country information and other material does not identify discrimination as an issue in relation to accessing the medical health services available, for the purposes of s 5J(1)(a) of the Act (at [28]).
In relation to the applicant’s claims about having no one to support him more generally, the Tribunal set out country information in respect of economic circumstances. The Tribunal set out that opportunities for people from the lower strata of society to find good jobs are constrained, and that COVID-19 worsened the incidence of poverty in the Philippines. Despite the economy having grown in 2022, many Filipino families rated themselves as poor (at [26]). Furthermore, the Tribunal found that if the applicant were returned to the Philippines, he will very likely be returning to his family home in Cabanatuan City with his wife and son. The Tribunal found he will likely be impacted by the difficult economic conditions in the country upon return, but that he will be able to access a basic level of support from his brother and sister in Australia whilst living with his wife and son in the Philippines (at [27]).
Having concluded that the applicant did not meet the refugee criterion in s 36(2)(a), the Tribunal considered the complementary protection criterion in s 36(2)(aa).
The Tribunal accepted that medical treatment is variable in availability and quality in the Philippines, and that the applicant may face some difficulty in accessing treatment for his high blood pressure and cholesterol. However, based on country information, it found that any difficulties he may have in accessing medical treatment does not amount to significant harm, as required by the relevant definitions of significant harm. The Tribunal found this would be due to a lack of capacity and availability of resources rather than an intentional infliction by the Philippines government to cause pain or suffering. Therefore, it does not amount to significant harm as defined in ss 36(2A) and 5 of the Act (at [32]).
The Tribunal then set out country information suggesting that economic hardship in the Philippines arises from the economic conditions impacting the country, rather than an act or omission intended to cause pain or suffering, as required by the relevant definitions of significant harm. The Tribunal therefore found on the evidence that any difficulties or hardship the applicant may face due to these conditions does not amount to torture, cruel or inhuman treatment within the meaning of the Act (at [33]).
The Tribunal found that the applicant does not otherwise face a real chance of harm in relation to his claims or profile, and thus, he does not face a real risk of significant harm in the Philippines (at [34]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [10], [37]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 12 February 2024 contains the following ground of review:
1.Rules were not properly applied as the decision made was unfairly quick and the applicant was not given enough time to be heard.
The applicant filed an affidavit with that judicial review application on 12 February 2024. The affidavit annexed a copy of the Tribunal’s decision.
The applicant appeared before the Court on 13 December 2024 without legal representation but with the assistance of a Tagalog interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 12 February 2024 (the affidavit being taken as read and in evidence at the hearing on 13 December 2024), a Court Book numbering 155 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 29 November 2024.
The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ANP23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1153 at [51]. Accordingly, at the hearing of this matter on 13 December 2024, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZKRT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
CONSIDERATION
As outlined above, there is one ground of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In this matter, the application includes one unparticularised ground. In these circumstances particularly, the Court gave the applicant an opportunity to say what was wrong with the Tribunal’s decision. The applicant initially simply told the Court that he did not understand why the Tribunal did not consider the problems that he had experienced in the Philippines. The Court took him to the ground of his application and invited him to explain or expand upon that ground, noting it appeared to comprise of three elements. The first of these was that the Tribunal did not properly apply “rules”; the second was that the decision was made too quickly; and the third was that the applicant was not given sufficient time to be heard.
The applicant confirmed that there were no additional grounds he wished to raise in respect of the Tribunal’s decision. When invited to reply to the Minister’s submissions, the applicant told the Court that he stood by his claim that the Tribunal did not consider the “reasons” he put forward regarding his case.
Tribunal’s consideration of claims
The first limb of the applicant’s ground is that the “[r]ules were not properly applied” by the Tribunal. At the hearing, the applicant clarified that he meant that the Tribunal did not accept his claim relating to his involvement in the case of the barangay chief. The applicant told the Court that he felt that this was not taken into consideration. The Court observes that the applicant had essentially advanced two claims before the Tribunal and will consider whether the Tribunal properly considered both of these claims, namely, that he witnessed a political killing, and that he feared he would be denied access to medical treatment in the Philippines for his heart condition and cholesterol. In the hearing, the applicant submitted that he did not understand why the Tribunal did not consider the problems he had in the Philippines, particularly emphasising that the Tribunal did not properly apply rules as it did not consider the attempt against his life as a result of the “case with the barangay chief”.
In written submissions, the Minister submitted that the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Act. The Minister then particularised these exhaustive obligations in three respects. The Minister submitted that the Tribunal invited the applicant to a hearing in accordance with ss 425 and 425A of the Act, it put the applicant on notice of the determinative issues, namely the credibility of his claims and whether he satisfied s 36(2) of the Act, and that there was no information it was required to put to the applicant for comment or response under s 424A of the Act.
In oral submissions, Mr Chan submitted that, when one reads the Tribunal’s decision, it is apparent that it considered both of these claims but rejected them. Mr Chan submitted that, in relation to the political killing claim, the Tribunal found numerous credibility issues. In respect of the medical claim, Mr Chan submitted that the Tribunal rejected this claim based on country information, evidence that the applicant still had family in the Philippines, and that any lack of access to medical treatment did not meet the definition of persecution or significant harm.
It is clear to the Court that the Tribunal was both alert to, and considered, the applicant’s claims that he witnessed a political killing, and his fears of being denied access to medical treatment in the Philippines for his heart condition and cholesterol. The Tribunal carefully set out the claims made by the applicant in his application and his subsequent written responses to questions asked by the Department and his evidence before the Tribunal in some detail. Furthermore, the Tribunal clearly engaged with the applicant at the hearing in relation to his claims. Importantly, it provided a fulsome explanation for why it made the findings that it did. Critically, the Tribunal came to the conclusion that it was not credible that anyone involved in the alleged murder of the barangay chief, or seeking revenge in respect of the alleged murder, would still be looking to harm witnesses to that murder 38 years after the claimed date of the murder. Similarly, the Tribunal’s findings in respect of the applicant’s ability to access health services were grounded in the country information before it. The Court agrees that the findings which were made by the Tribunal in respect of the claims were open to it and for the reasons it gave.
No jurisdictional error arises in respect of this limb of the applicant’s ground.
Was the Tribunal decision made too quickly?
The second limb of the applicant’s submission to the Court, further to the ground sought in his application, is that the Tribunal made its decision “unfairly quickly” and that the Tribunal should have taken longer to think about its decision. The essence of this argument is that the Tribunal could not have properly considered the applicant’s claims in the time it took to reach a decision.
In written submissions, the Minister submitted that the Tribunal made its decision within three months of the review application being made, which was “neither unreasonable nor unorthodox”. Mr Chan submitted to the Court that there was a period of several weeks between December and January when the Tribunal made its decision, and that there is nothing unusually short about that period of time, particularly where the one of the Tribunal’s objectives is to make decisions efficiently.
The Court agrees with the Minister’s submissions in this regard. The Court confirmed with the applicant in the hearing that he appeared before the Tribunal on 13 December 2023, and that the Tribunal made its decision on 9 January 2024. The Court agrees with the Minister that this timeline, as well as the reasons provided by the Tribunal, suggests that the Tribunal properly considered the relevant material before.
In circumstances where the applicant submitted that he was not given enough time to be heard during the hearing, the Minister argued that the hearing was over three hours long, commencing at 1:33pm and concluding at 4:36pm (CB 133-135). The Minister therefore submitted that this, along with the Tribunal’s detailed recitation of the oral evidence, demonstrates that the applicant was given ample time to be heard, and there is nothing to suggest he was denied a real and meaningful opportunity to present his case (citing Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553). The Court agrees.
In Pabbi v Minister for Home Affairs [2019] FCCA 1750, this Court observed that there is no statutory time limit for hearings before the Tribunal, and that what is required is that the Tribunal provide the applicant with a real and meaningful opportunity to provide evidence and present arguments (at [54]-[55]). In the Court’s view, the applicant was provided with a meaningful opportunity to provide evidence and present arguments. The hearing spanned for over three hours, the applicant gave oral evidence at the hearing, and the Tribunal considered further material provided to it in support of the review application, namely, a letter of support from his brother, a statutory declaration from his sister, and a sworn statement from a Mr D.
The time taken to make a decision and the time allowed for the decision needs to be viewed in context of whether or not the Tribunal properly and fulsomely considered the claims advanced by the applicant. Having regard to the Tribunal’s decision as a whole, as well as the fact that it took place for over three hours, the Court observes that the decision is a careful, thorough and considered review of the entirety of the claims and evidence put forward by the applicant. The Court is satisfied that the Tribunal properly considered, and engaged with, the claims advanced.
No jurisdictional error arises in respect of this limb of the applicant’s ground.
Was the applicant provided with a sufficient opportunity to be heard?
The third limb of the applicant’s submission is that the Tribunal did not provide him with adequate opportunity to “study his case”. The Court queried with the applicant whether he meant that he had not been provided with sufficient time to prepare for the hearing or whether he had not been given enough time at the hearing to give evidence. The applicant clarified that he had not been given enough time to be heard during the hearing. The Minister, in response, submitted that where the hearing ran for approximately three hours, and the applicant did not ask for additional time to present his case, the Tribunal cannot be faulted for not extending the hearing any further.
The Court accepts the Minister’s submissions in this regard. The applicant was provided an opportunity to give evidence at the hearing in respect of his claims, and did so. It is equally clear that the Tribunal also took the time to probe the applicant’s claims with him during the hearing. In the Court’s view, the applicant was provided with an adequate opportunity to give evidence and present his claims.
No jurisdictional error arises in respect of this limb of the applicant’s ground.
Furthermore, looking at the Tribunal’s decision as a whole, the Court can find no easily discernible jurisdictional error. The Tribunal’s decision reveals it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs(1998) 86 FCR 547; and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none.
The Court is satisfied that, even adopting the broad approach referred to in [39] of these reasons, no denial of procedural fairness arises.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 29 January 2025
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