ARH24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ARH24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 222

Filenumber(s):

BRG 70 of 2024

Judgment of:

JUDGE EGAN

Date of judgment:

20 February 2025

Catchwords:

MIGRATION – Where the applicant made new claims in a hearing before the Tribunal in circumstances where those claims had not been raised before the delegate as the primary decision maker – where the Tribunal well appreciated that before it made an unfavourable finding as to the applicant’s credibility under s.423A of the Migration Act, it had to first be satisfied that the applicant had not provided a reasonable explanation for the omission to make the claim before the delegate – where unfavourable credibility finding made – where no error established - application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 423A, s. 423A(2)

Cases cited:

BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400

MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68

SZQPY v Minister for Immigration and Border Protection

[2018]

Division:

Division 2 General Federal Law

Number of paragraphs:

28

Date of Hearing:

17 February 2025 

Place:

Brisbane

Solicitor for the Applicant:

Mr K. Qoro of Taylor Rose

Solicitor for the Respondents:

Ms L. Helsdon of Sparke Helmore

ORDERS

BRG 70 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ARH24

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	20 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”.

3.The Originating Application for Review filed on 16 February 2024 be dismissed.

4.The applicant pay the first respondent’s costs of and incidental to the Application for Review fixed in the amount of $4,189.

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 EGAN

Introduction

1. The applicant is a citizen of the Republic of Fiji who, after arriving in Australia on 22 August 2018, applied for a protection visa on 11 September 2018. The applicant described himself as having been born in Suva on 4 April 1974, and whose religion was that of a Christian methodist.

2. A delegate of the Minister refused to grant the protection visa application on 9 March 2019.

3. The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal. (the Tribunal).

4. On 4 January 2024, the Tribunal affirmed the decision of the delegate.

5. At [8] of its reasons, the Tribunal recorded the applicant’s claims as follows:

   •He was depressed and traumatised by the way the government is mistreating the people of Fiji and the indigenous people.

   •He had been a public servant (employed as a government high school teacher) for the previous 22 years and had been a faithful servant of the government.

   •He was brought up in a family where traditional values and rights and the respect for traditional leaders was of paramount importance to their daily lives. His grandfather was a traditional village leader and from the chiefly family. He was brought up in the village before coming to the city at the age of six. He valued and respected his traditional leaders. He was brought up in a family that respected the culture and tradition of their land.

   •The current government had disrupted the Fijian traditional system making it impossible for the younger general to understand the importance, and to value the role of traditional leaders. The applicant stated that the government's actions had depressed him and resulted in his becoming aggressive and withdrawn at times.

   •There had been a lot of coups in Fiji. The last military coups in 2006 had greatly affected his life since childhood. He had decided to stay in Australia because he did not want to be a victim of the 'political up-evils' that had been happening in Fiji and that had harmed him psychologically and mentally.

   •If he returned to Fiji he would be deprived of his basic human rights. In Australia he had become healthier mentally and physically and less depressed. The applicant referred to fears of going back home after seeing and exercising freedom of speech, and the right to criticise his government on social media and to be able to discuss the problems he faced as a youth because of the Fijian Government's mistreatment. He expressed a fear that he would be reprimanded and the psychological depression that he had gone through for over 12 years in Fiji would return and could result in him ending his life. The applicant described life in Fiji as very depressing for him and said that 'all the doors were closing down on me'.

   •His extended family had suffered a lot since the 2006 military take over. His uncle (Mr XXXX and Mr XXXX and their families - his father's two brothers) had been granted protection by the Australian government because of the threats to their family after the 2006 military coup. Their families had been victims of the 2006 coup and were wanted by the Fiji Government. The applicant stated that the surname XXXX was wanted name and the government at times questioned members of the extended family, including him, about their involvement with the two uncles and why they challenged the government through social media. This had been depressing for him as he was very close to his two uncles and their families. The applicant described his relationship with the families. He always feared the government and had been depressed by how the government's actions had caused his extended family members not to return to Fiji fearing for their safety.

   •The applicant described himself as a strong advocate of human rights and as having been stressed and depressed by the way the Fijian government had suppressed the people's voice. The applicant referred to his circumstances in Australia, stating that he had experienced freedom of expression and a democratic way of life. He no longer lived in fear or faced the sad situation he had experienced in Fiji, one where his rights are not exercised for fear of being arrested by those in power. He referred to the government, police and military.

   •If he returned to Fiji the problems that he had faced would be worse because there were more restrictions on people, and people in Fiji were living in fear and could not trust one another for fear of being reported.

   •The applicant stated that he did not feel safe going back to Fiji because the current government was taking away from their rights as 'indigenous and last settlers of Fiji'.

   •The applicant described himself as a strong advocate of human rights, a proud Fijian and one who advocated strongly for traditional values to be maintained. The applicant referred to the government maintaining that they were all equal and that their right as traditional custodian of the land was taken away. He referred to this having a negative psychological effect and resulting in him becoming angry, depressed and aggressive.

   •The applicant referred to seeing the differences during his first visits to Australia (December 2016 to January 2017). He stated that he now saw the situation in Fiji as one that was not safe for him. He felt threatened and always afraid in Fiji.

   •The applicant referred to his anger towards the government and described being depressed and aggressive as he could not do anything. He referred to wanting to take action and punish everyone around him. He stated that his family thought he was getting mentally ill but it was the environment that he was living in that was affecting him. Coming out of Fiji had greatly help reduce his psychological stress and depression.

   •His rights as an individual had been deprived and suppressed. He did not want to let his family suffer.

   •When he came to Australia to spend time with his friend he experienced a very different atmosphere in this country. He likened this to the situation before the 1987 military takeover and between 1993 and 2000. The applicant claimed that he did not feel safe and his family was not safe in Fiji.

   •The applicant described the situation as becoming life threatening situation for him. He stated that one of the rights he had been deprived of was his freedom of speech. He could not criticise the government of the day because it would result in his being arrested and taken to task by the police and military. People were taken to court and charged for talking against the government of Fiji. The applicant stated that he criticised the government and was able to speak freely about the government in Australia.

   •The Fijian authorities would not be able to protect him because they were the group that was causing the problem and the government that was the cause of the harm that he went through every day when he was in Fiji.

   •The applicant claimed that there was no assistance available through counselling and advice. NGOs did not want to risk a bad relationship with the government, so they kept quiet about their situation and health risks. The applicant stated that he did 'not want to risk their own lives in case the NGOs' inform the government about the situation they had to hand'. The applicant stated that he did not want to go through the same fear and depression again. Seeking outside help was not an option. It was only his friends and relatives that he turned to for advice.

   •The applicant described improvements in his life and to his mental health since coming to Australia. He referred to having been very aggressive and suspicious in Fiji, and being unable to control his temper and closing himself to everyone around him. He stated that he once tried travelling and said that when he got back to Fiji the situation became worse for him and he returned to being withdrawn and depressed. He said he had even thought of taking his life because he could no longer take the pressure seeing how the indigenous people were not heard and how the government was making the poor get poorer and the rich get richer. Being unable to have a voice or criticise government policies negatively affected him. The freedom in Australia had helped him psychologically. He could voice his opinion about the Fiji government online. If he went back to Fiji the psychological and mental depression and stress would return.

   •The Fijian government was causing all these problems. The applicant stated that, if he returned to Fiji, the trauma would continue and referred to the impact of this would have on him. He said that this was because of the situation in Fiji where Indigenous people were suppressed and had their rights taken away from them. He claimed that they were at risk of losing the right to the land that the family line had owned 'in the hands of the current government'.

   •The applicant stated that he suffered seeing that his family and his nephew and nieces suffering. He described the suppression of the traditional leadership system in Fiji as very depressing. He described his life in Fiji as depressing.

   •He could not move to any other part of Fiji because this was a major problem and the government was a threat to him and his extended family. If he moved to his village the whole village would be implicated and he could be seen as the one causing trouble. He did not want his village to suffer and to be stigmatised. He could not move to another place.

6. On 16 February 2024, the applicant filed an Originating Application for Review of the decision of the Tribunal which had five grounds. The applicant sought an extension of time for the filing of the subject proceeding. The application had been filed eight (8) days’ out of time. At the time of the hearing before the Court on 17 February 2025, the applicant relied only upon grounds 1 – 4 which relevantly were as follows:

   Ground 1 Fail to apply or failing to correctly apply s 423A of the Migration Act 1958

   1.The Administrative Appeals Tribunal (Tribunal) erred jurisdictionally in its assessment of the criteria for a protection visa in s 36(2)(a) (refugee criterion) and s 36(2)(aa) (complementary protection criterion) of the Migration Act 1958 (Cth) (Act) by failing to apply, or failing to correctly apply, s 423A of the Migration Act 1958 in finding that the omission of any reference to the August 2018 incident (physical and sexual assault) from the evidence given to the Department in the Application’s application for Protection Visa in September 2018 and such evidence being raised for the first time in the appeal at tribunal hearing of December 2023 lacks credibility.

   Particulars

   (i) The Applicant had applied for protection visa on 11 September 2018.

   (ii) On 9 March 2019, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth).

   (iii) The Applicant sought to review the decision of the delegate on 9 March 2019 to Tribunal.

   (iv) The Tribunal heard the application for review in December 2023. He refused such application in his decision of 4 January 2024 and affirmed the decision of the delegate of 9 March 2019.

   a)   At the Tribunal hearing in December 2023, the Applicant raised for the first time the physical and sexual abuse perpetrated to him and his cousins by the Military officers on 13 August 2018. This August 2018 incident is outlined at paragraphs 52 to 82 of the Applicant’s affidavit affirmed on 14 February 2024.

   b)   The Tribunal, in his decision dated 4 January 2024, found that the August 2018 incident lacks credibility because it was not raised or omitted from the evidence given the Department in the Applicant’s application for protection visa on 11 September 2018.

   c)   In concluding that the he does not accept Applicant’s claim about an incident in 2018 and such providing the trigger for him to come to Australia, the Tribunal made the following findings:

   (i)“49. As discussed with the application at the hearing, the 2018 incident was not raised in his claim to Department”.

   (ii)“51. I find the omission of any reference to such an event from the applicant’s claim to the Department to be significant and I have ultimately not accepted his evidence about this to be credible”.

   d)   In assessing the explanation given by the Applicant as to the reasons for such omission, the Tribunal made the following findings at para 54 of his ruling that:

   “54. While the applicant has referred to his aunt preparing the application and sought to claim that he was not aware of what was in the application until he requested it later, on his own evidence the applicant was involved in the preparation of the application and had the opportunity to read the information in it. While he referred to skimming through it and reading it briefly, the absence of any mention whatsoever of this matter from the 4-page written statement would have been a very obvious omission if such a serious event had occurred and had provided the trigger for him to come to Australia and seek protection. I do not consider that there is any satisfactory explanation as to why he would pay so little attention to what was in his application and fail to ensure that it reflected the central event that he now claims caused him to flee Fiji. I have had regard to what the applicant has said about the nature of the event and about privacy concerns and about difficulty putting it down on paper. I am conscious that a sexual assault is something that is sensitive in nature and might be difficult to describe in writing or to a person such as an aunt. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility which state that claims relating to a sexual assault require particularly sensitive investigation (at paragraph [24]). However, the application to the Department makes no mention whatsoever of any incident in August 2018 or of the applicant having been physically harmed by the Fijian authorities. I note also that the applicant has given evidence to the effect that he was fearful when he first came to Australia and that he was more settled when he made the 2021 statement. I have carefully considered the applicant’s explanations for the omission. However, I do not accept that there is a satisfactory explanation as to why, if the applicant had been involved in the preparation of the application which he was able to read and sign, it would not include some reference to such a central matter which he claims provided the catalyst for him to leave Fiji and apply for protection in Australia. In this regard, I note also that the applicant has indicated that he has a number of relatives who have successfully claimed protection in Australia. In all the circumstances, I do not accept that the claimed event in August 2018 occurred as claimed or that such an event provided a trigger for the applicant to come to Australia. I find the applicant’s evidence in this regard to be lacking in credibility.”

   e) In reaching the concluding that the Applicant has not provided any satisfactory explanation for failure provide the evidence of the 2018 incident in protection visa application to the Department on 11 September 2018, Tribunal failed to exercise and comply with his obligation under s 423A(2) of the Act.

   Particulars

   (i) The Tribunal in drawing an inference unfavourable to the credibility of the claim or evidence by reason that he considered that the Aplicant has provided a or any “satisfactory explanation “failed to exercise his obligation envisaged under s 423A(2) being “satisfied that the Applicant does not have reasonable explanation” why the claim was not raised or the evidence was not presented before the Department. (Our underlying and Italics for emphasis)

   Ground 2 – Wrong Question.

   2.The Tribunal erred jurisdictionally by asking itself the wrong question and misapplying s 432A(2) in determining whether he is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented to the Department before drawing an inference unfavourable to the credibility of the claim or evidence of the applicant.

   Particulars

   (i) The Applicant relies on the particulars outlined in Ground 1 above.

   (ii) It could be deduced from paragraph 54 of the Tribunal ruling that the question asked by it in not accepting the evidence of the applicant in relation to 2018 incident was:

   “Whether the Tribunal considers that there is a or any satisfactory explanation as why the evidence of 2018 incident was presented before the Department in his protection visa application on 11 September 2018 before the decision was made on 9 March 2019?

   (iii) Such question does not reflect the criteria set out in s 423A(2) of the Act and thereby misapply it.

   (iv) Further it could be deduced from s 423A(2) of the Act that the correct question ought to be asked by the Tribunal in making a decision on the applicant’s review application is:

   “Whether the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim of 2018 incident was not raised, or the evidence of it was not presented in his protection visa application on 11 September 2018, before the Department made its decision on 9 March 2019?

   (v) The Tribunal erred jurisdictionally in asking the wrong question.

   Ground 3 – Proper, genuine and realistic consideration

   3.The Tribunal erred jurisdictionally in that he did not give proper, genuine, and realistic consideration to the requirement of s 423A (2) and refused to accept the evidence provided to him by the Applicant being a reasonable explanation as to why the 2018 claim was not raised or the evidence of it was not presented before the Department made the decision to refuse his protection visa application on 9 March 2019.

   Particulars

   •Physical and sexual nature of the 2018 incident which is described in paragraph 52 to 82 of the Applicant’s affidavit filed herein.

   •Privacy and sensitive concerns of the Applicant and the difficulty of putting it down on paper.

   •sexual assault is sensitive in nature and might be difficult to describe in writing or to a person such as an aunt.

   •Lack of migration or legal assistance in preparation of his application.

   Ground 4

   4.The Tribunal erred jurisdictionally that he failed to discharge its statutory task under s 423A(2) of the Act on a circumstances where it did not accept the explanation why the 2018 incident claim was not raised or the evidence presented to the Department was not satisfactory as opposed to reasonable as required under s 423A(2) particularly where the failure to consider the explanation as reasonable (as opposed to satisfactory) leads to a finding to the Applicant’s credit and rejection of the evidence that event in August 2018 occurred as claimed or that such an event provided a trigger for the applicant to come to Australia.

   Particulars

   a)   The Applicant relies on the particulars outlined in Grounds 1, 2 and 3 above.

   b) S 423A (2) of the Migration Act 1958

   c)   The rejection of his explanation did not have an especially strong foundation

   Consideration of Grounds of Review

1. Factors which are considered on an extension of time application include the extent of the delay, an explanation of the reasons for the delay, the interests of the public, as well as the merits of the substantive application. [1]

   [1]           MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68 at [30] per Murphy J.

2. It has also been held that a Court hearing an application for extension of time should not readily disturb what has been provided for as a time limit in relevant legislation. [2]

   [2]           BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3] per R. Derrington J.

3. At the time of the hearing before the Court, the lawyer for the first respondent could not point to any prejudice being suffered in the event that time for the commencement of the proceeding was ordered to be extended. The Court then considered the substantive merits of the application before it.

4. As at the time of the hearing before the Tribunal, s. 423(A) of the Migration Act 1958 (Cth) (the Act) (since repealed) relevantly provided as follows:

   423A – How Tribunal is to deal with new claims or evidence

   (1)This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:

   (a)   raises a claim that was not raised before the primary decision was made; or

   (b)   presents evidence in the application that was not presented before the primary decision was made.

   (2)In making a decision on the application, 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.

5. It was common ground at the time of the hearing before the Court that at the time of the hearing before the Tribunal on 6 December 2023, the applicant first raised two new claims which had not been raised before the delegate in their capacity of the primary decision maker. As to those two claims, it was conceded by the lawyer for the applicant that the grounds of review only related to the claim concerning a sexual assault said to have been perpetrated upon the applicant on 13 August 2018.

6. It was further conceded by the lawyer acting on behalf of the applicant that each of the grounds of review related to a claim that it was that alleged August 2018 incident that the Tribunal was said to have failed to correctly apply, or properly consider, and act in accordance with, the provisions of s. 423A of the Act.

7. As to Ground 1, it was submitted on behalf of the applicant that the Tribunal erred, in [54] of its reasons, when it found that there was no “satisfactory explanation” given to it by the applicant as to why the applicant failed to make a claim to the primary decision maker in relation to the 13 August 2018 incident. ^[3] It was submitted, rather, that the Tribunal ought to have proceeded on the basis that the proper question for consideration under s. 423A(2) of the Act was whether there was any “reasonable explanation” as to why the claim was not so raised, and that because the Tribunal had not so proceeded, the decision could not stand. It was submitted that the Tribunal had acted beyond jurisdiction.

   [3]           See C (c) (1) – (21) of the Applicant’s Submissions filed on 30 January 2025.

8. The applicant relied upon the decision of Colvin J in SZQPY v Minister for Immigration and Border Protection [2018] FCA 359 at [15] – [18] where it was held as follows:

   [15] Relevantly for present purposes, the jurisdiction in the High Court is confined to review for jurisdictional error. In migration cases, such error consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration & Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23].

   [16] Where a decision-maker is given statutory authority to undertake a particular type of decision-making function and what is done conforms to that requirement then there is no jurisdictional error. A court may disagree with the decision or may be able to identify errors in the reasoning process but there is no jurisdictional error unless those errors take the decision-maker outside the limits of statutory authority: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] quoted with approval in Kirk v Industrial Court (NSW) 37; (2010) 239 CLR 531 at [66].

   [17] Recent High Court authorities show that “the identification of jurisdictional error in any particular case will depend critically upon the proper construction of the particular statute conferring jurisdiction, and the findings made with respect to the particular acts which are said to have taken the decision-maker beyond jurisdiction”: Laing O’Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 at [95].

   [18] In exercising the statutory jurisdiction to review a decision of the Minister refusing the grant of a protection visa, the Administrative Appeals Tribunal must conform to the requirements of Pt 7 of the Migration Act by which that jurisdiction is conferred. In conducting a review, it is entrusted with all of the powers and discretions conferred by the Migration Act on the person who made the decision: s 415(1). It “is not bound by technicalities, legal forms or rules of evidence”: s 420(a). It “must act according to substantial justice and the merits of the case”: s 420(b).

9. As to grounds 2, 3 and 4 of the Application for Review, it was further submitted that because the Tribunal had misdirected itself as to the proper statutory test to be applied when considering the application of s. 423A as claimed in Ground 1, the Tribunal had asked itself the wrong question; had not given proper, genuine and realistic consideration to what was required for compliance with the provisions of s. 423A of the Act; and that it had thereby failed to discharge the statutory task imposed upon it.

10. The Court does not accept the applicant’s submissions.

11. It was clear from a reading of the transcript of the hearing before the Tribunal that the Tribunal member well appreciated that the relevant degree of satisfaction required (before the Tribunal drew an inference unfavourable to the credibility of the applicant’s claim concerning the 13 August 2018 incident) was whether the applicant had a reasonable explanation as to why the claim was not raised before the primary decision maker. [4] At transcript P. 20.36 – P. 21.17 the relevant exchanges during the hearing were as follows:

    “Okay. I should let you know that there's a part of the law - section 423A of the Migration Act, which is very technical and legal, I know, but basically what it says is that I have to draw an inference unfavourable to the credibility of a claim or evidence if it's a claim or evidence that was not raised or presented to Immigration or to the Department of Home Affairs - - -?---Oh okay.

    - - - and I'm satisfied that there's no reasonable explanation for why the claim wasn't raised and that evidence wasn't presented?---Yes.

    So it seems - you're claiming now that this incident happened in 2000?---Okay.

    So, I might need to think about whether there's a reasonable explanation why you didn't raise that in your original application or your evidence to the department. Does that make sense?---Okay. Yes, sir.

    Is there a reason why you didn't raise?---Basically because what affected me the most was just from the - when (indistinct words) Sir. Yes, prior to that what happened in 2000, I think we as Fijians, we'd gone through the division protocols of having (indistinct words) that and I do put in there as mentioned for (indistinct) it's basically a (indistinct words) but to use it as a solid. What's it- like you say is I totally agree with you. I wouldn't refer to that as, you know, something that was 2000 and - what - 49 years of age now, sir, so as I was saying. Yes. My grievances are basically from 2006, I mean, to now. Thank you, sir.

    So there was this incident in 2018, on 2 May. You were at the Hibiscus Festival?--- Yes, sir.”

    [4]           See annexure XT-1 to the affidavit of Ms Tran filed on 30 October 2024.

12. At transcript P. 25.24 – .47 there was a further example of how the Tribunal member well appreciated that before an unfavourable inference as to the applicant’s credibility might be drawn, the Tribunal first had to decide whether the applicant had provided a reasonable explanation as to why the claim was not first raised before the primary decision maker.

13. The reasons of the Tribunal set out the applicant’s relevant family relationships which were raised by him in the context of his being perceived to be associated with relatives who were high ranking political figures. [5] The Tribunal further considered in detail the applicant’s claims that he had suffered harm at the hands of the Fijian military and government authorities. [6]

    [5]           [26] – [40] of the reasons of the Tribunal.

    [6]           [41] – [65] of the reasons of the Tribunal.

14. At [51] – [53] of its reasons, the Tribunal detailed how it had had regard to the applicant’s reasons for having omitted any reference to the August 2018 incident when participating in the interview with the primary decision maker. The Tribunal found as follows:

    51.I have considered carefully the applicant's explanations about the 2018 incident. As noted above, by the time of its September 2017 report, DFAT assessed that individuals critical of the government faced a low risk of torture, although it did refer to some monitoring, intimidation and harassment, for instance, of senior members and leaders of opposition political parties. While I am conscious of the applicant's claims about his relatives' activities in Australia, the applicant's evidence suggests that his uncle, Simione, had been in Australia for over 10 years by the time of the claimed incident in 2018. I note also the applicant's claims about his own involvement in politics. Even having regard to this, the country information would appear to suggest that the risk of such an event at that time was low. I am conscious that this in itself does not mean that such an event could not have occurred. However, for reasons set out below, I find the omission of any reference to such an event from the applicant's claims to the Department to be significant and I have ultimately not accepted his evidence about this to be credible.

    52.I have had regard to the applicant's explanations for the omission of the 2018 incident from the evidence given to the Department. I have also had regard to the applicant's evidence at the hearing about how the application was prepared. \/\/hen asked at the hearing about whether he had filled out the protection visa application, he stated that it was done by his aunt when he came to Sydney around November 2018. He then said that he was not aware of what was submitted until he asked for the documentation that they had submitted. He described sitting down and talking with his aunt and said she advised him on what would go in there. He said he asked the Department for a copy of that in 2021. He said he found out that what had gone in was not to the effect of what he wanted submitted because of what he had gone through. When asked whether he signed the application, he replied in the affirmative. When asked whether he had read before he signed, he said that he had done so briefly. I asked the applicant why he signed the application if it did not represent everything he wanted to say. The applicant said that it was his fault. He referred to an incident in 2009 when the younger uncle, Semisi, came to Fiji after he had obtained Australian citizenship. The applicant described an incident in which the uncle and his grandson had been stopped at the airport in Fiji, and said they did not feel safe and said he felt it was better to come to the applicant's place. The applicant said he wanted to include it in the details. He asked his aunt about it. It was his fault for signing the statement.

    53.Particularly having regard to the serious nature of the claimed incident in 2018, I have given very careful consideration to the applicant's explanations for the omission of any mention of this incident from his evidence to the Department and to his claims about the manner in which the protection visa application was prepared. …

15. It could not be said that the Tribunal had failed to intellectually engage with the relevant claims made by the applicant as to why he had not made the claims to the primary decision maker.

16. In EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs, 7[7] Raper J was there dealing with a factual situation where, notwithstanding the fact that the Tribunal had not explicitly referred to s. 423A in its reasons, it was tolerably clear from a reading of the transcript of the Tribunal hearing in that matter that the Tribunal had made reference to the credibility of the later raised claim in the context of the earlier failure to mention such claim undermining the applicant’s credibility. At [50] – [52] of His Honour’s judgment, it was held as follows:

    [50] Itis my view that there is no necessity to determine whether s 423A constitutes a complete code or not given the true contest, about which the parties join issue, is whether the Court can be satisfied (as the primary judge was) that the state of satisfaction was reached and that the reasons of the Tribunal properly reflect that in a manner that did not ground jurisdictional error. The requisite state of satisfaction, said to be required by both parties, was in fact achieved.

    [51] In any event, I do not accept the appellant’s description of the operation and bounds of s 423A. Section 423A cannot be read as codifying the circumstances in which the Tribunal may draw an unfavourable inference. Rather, as the Minister contended s 423A makes it mandatory where there is the late assertion of a claim or the provision of evidence for the Tribunal to draw an unfavourable inference regarding the applicant’s credibility in the absence of a reasonable explanation. This does not entail the obverse, namely that where there is a satisfactory explanation no credibility finding can be made in respect of the claims: see, eg, SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331 at [20] . There is no requirement in s 423A as to the process for drawing a negative inference to be conducted in a particular manner. The provision simply permits, and requires, the drawing of the inference upon a state of satisfaction. The section has a limited compass: The drawing of an inference in the context of the late assertion of a claim or the provision of new evidence. It does not limit or circumscribe credibility findings which may be made more generally about a visa applicant’s claim. Rather it deals with a temporal phenomenon — the late provision of a claim or new evidence which risks unreliability and invention or manufacture to support a claim. As referred to above, the section was inserted into the Act, together with s 5AAA, to provide an incentive for visa applicants to put before the Department and/or the Minister all of his or her claims at the earliest opportunity.

    [52] Forthe following reasons, it is my view that, as the primary judge found, despite the Tribunal making no express reference to the provision, it is clear from the manner in which the Tribunal conducted the hearing (its questioning of the appellant and allowing him to put on more evidence after the hearing regarding this new claim) and from its reasons, that the Tribunal did understand what was required under the section: It is mandatory for the Tribunal to draw an unfavourable inference regarding the applicant’s credibility in the absence of a reasonable explanation.

    [7] [2023] FCA 1182.

17. In the present matter, not only did the Tribunal specifically refer to s. 423A during the course of the hearing, it also made clear during that hearing that an unfavourable credibility finding could be made against the applicant unless the Tribunal was satisfied that the applicant had provided a reasonable explanation for his failure to first make the claim before the delegate.

18. The Court finds that the Tribunal well appreciated the relevant test for the making of an unfavourable finding on credibility under s. 423A, and that its use of the words “satisfactory explanation” in its reasons ought to be accepted as being synonymous with the words “reasonable explanation” as used in the section. The Tribunal did not err when doing so.

19. There is no merit to Ground 1 of the Application for Review. Grounds 2, 3 and 4 of the Application for Review are similarly without merit due to their reliance upon the propositions as advanced under Ground 1.

20. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

21. The Application for Review is dismissed.

22. The Court will hear the parties as to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       20 February 2025