Asu22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 654

File number(s):

SYG 414 of 2022

Judgment of:

JUDGE LAING

Date of judgment:

16 August 2022

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider relevant considerations and evidence – whether the decision of the Tribunal was legally unreasonable – whether contended errors by the Tribunal occurred and were material – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36, 116, 189, 426, 501

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317

Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546

Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZJYM v Minister for Immigration & Anor [2008] FMCA 652

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; 206 ALR 471

Number of paragraphs:

68

Date of hearing:

27 July 2022

Counsel for the Applicant:

The applicant appeared in-person

Solicitor for the First Respondent:

Ms C Saunders, of Minter Ellison Lawyers, appeared in-person

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 414 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ASU22
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	16 AUGUST 2022

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 LAING

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 February 2022. The Tribunal affirmed a decision made by a delegate (Delegate) of the first respondent (Minister) refusing to grant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Malaysia. He arrived in Australia on 25 April 2017 on an Electronic Travel Authority (Class UD) (Subclass 601) visa that had been granted on 17 April 2017. That visa expired on 25 July 2017.

3. On 22 June 2017, the applicant applied for the protection visa that is the subject of this review. The applicant was granted an associated Bridging Visa A (bridging visa) on 3 July 2017.

4. On 4 October 2017, the Delegate refused the protection visa application. The applicant applied to the Tribunal for review of the Delegate’s decision on 24 October 2017.

5. On 26 November 2019, the Department commenced the process for cancellation of the applicant’s bridging visa under s 116 of the Migration Act 1958 (Cth) (Act). The Tribunal’s decision records that the “visa was not cancelled on 31 May 2021” in relation to this process (at [4]). However, on 30 April 2021 cancellation of the applicant’s bridging visa was commenced under s 501 of the Act. On 25 May 2021, the applicant’s bridging visa was cancelled.

6. On 22 June 2021, an application for revocation of the cancellation decision was made. The applicant was placed in immigration detention on 4 December 2021.

7. The applicant participated in a Tribunal hearing on 8 February 2022. The hearing was conducted via telephone due to the applicant being in a detention centre and a high number of COVID-19 infections.

8. On 10 February 2022, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.

   THE TRIBUNAL’S DECISION

9. The Tribunal accepted that the applicant was a citizen of Malaysia and did not have a right to enter or reside in any other country (at [38]).

10. However, the Tribunal was not satisfied that there was any truth to the applicant’s protection claims. At [37], the Tribunal expressed that it was “satisfied that the applicant’s protection claims were manufactured in their entirety” and that it had “reject[ed] them”.

11. The Tribunal raised a number of credibility concerns in rejecting various aspects of the applicant’s claims. These included:

    (a)The applicant’s delay in applying for the protection visa. The Tribunal observed that there was a delay of approximately 2 months between the applicant arriving in Australia and applying for the protection visa. The Tribunal was “not persuaded by the applicant’s explanation about his reason for the timing of the protection visa application” (at [39]), in respect of which the applicant had given inconsistent evidence. The Tribunal concluded at [40] that the “delay is evidence that the applicant’s protection claims have been manufactured and that he lodged the protection visa for reasons other than Australia’s protection obligations.”

    (b)Inconsistencies in the applicant’s evidence regarding the genesis of adverse interest in him by the Malaysian police (at [41]-[43]). The Tribunal noted that the applicant had given “fundamentally different evidence” regarding why the police wanted to harm him. In his written statement, he claimed that they were bribed into filing charges because of his activism against drug peddlers. In his oral evidence to the Tribunal, he claimed it was due to his opposition to his farmland being distributed to Malays. The Tribunal stated at [43]:

    43.The Tribunal is unable to determine which of the above possibilities occurred in the context of the applicant lodging his protection visa application form, but it is unnecessary to do so because on any of these possibilities, they lead to the conclusion that the reason for the inconsistency is due to the fact that the claims were fabricated. Likewise, if the applicant's claim that his farmland was forcibly taken because of he was identified as a Tamil Hindu, that claim would have been made plain in the protection visa application form. The Tribunal comes to the conclusion that the applicant's claims related to his activism about drug peddlers or opposition to his farmland being forcibly taken were fabricated in order to be granted a protection visa. The Tribunal makes this finding when it also assesses the other concerns it has about the applicant's credibility.

    (c)Inconsistencies in the applicant’s evidence regarding the ‘false cases’ he claimed had been raised against him (at [44]-[46]). In his oral evidence, he indicated he had only faced two charges (affray and, two weeks later, a murder charge). The applicant claimed he had no issues prior to 2013. However, in his written statement he claimed he had been charged with an assault with grievous harm in 2008 and murder in 2011. Despite this, he had returned to Malaysia in 2009. The Tribunal did not accept that the applicant had failed to mention the earlier two charges at hearing because they were “minor” (as was suggested by the applicant).

    (d)The vagueness of the applicant’s evidence regarding his claimed relocation within Malaysia for safety (at [47]-[50]). The applicant did not provide his residential history in his protection visa application form, despite being directed to do so. This suggested he had been at one address in Perak for the duration of his time in Malaysia. Whilst the applicant wrote in his written statement that he went to two other areas, the details he provided in this regard were “broad and lacking in… specificity”.

12. The Tribunal found at [51]-[54]:

    51.Across both the written material and the applicant's oral evidence, he has variously claimed that he faces a risk of harm in Malaysia because of his activism opposing drug peddling in his local region (through the police acting at the behest of the drug peddlers), that he is a part of a Tamil Hindu minority and that he opposes their discrimination by the government, that the government are corrupt, and that the police are targeting the applicant because he is a Tamil Hindu whose farmland has been identified for distribution to Malays.

    52.The Tribunal does not accept that the applicant is a witness of truth for the reasons outlined in this decision.

    53.Accordingly, the Tribunal does not accept that the applicant has experienced any of the past harm he has claimed, or that he is genuine when he claims that he will face harm upon his return to Malaysia.

    54.The Tribunal is satisfied that the applicant fabricated his protection claims. There is no truth to the applicant's claims and the Tribunal rejects them in their entirety.

13. Based upon the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [55]-[61]).

    PROCEEDINGS BEFORE THIS COURT

14. The present proceedings were commenced by an application for judicial review filed on 16 March 2022. The following was stated under “Grounds of application”:

    1.        The Applicant is a Citizen of Malaysia by birth.

    2.The Applicant arrived in Australia on 25 April 2017 on a valid visa subclass 601.

    3.On 22 June 2017, the Applicant applied for a valid protection visa which was refused by the Department of Home Affairs on 4 October 2017.

    4.The Applicant further applied for a merit review with the Administrative Appeals Tribunal, which was affirmed on 10 February 2022.

    5.The Second Respondent failed to provide procedural fairness and for that reason fell into jurisdictional error.

    Particulars

    a.The first respondent commenced a cancellation of the applicant’s bridging visa on s 116 grounds on 26 November 2019. A decision was made not to cancel the applicant’s visa on 31 May 2021.

    b.On 30 April 2021, the first respondent cancelled the applicant’s visa on s 501 grounds ignoring the fact that a notice of intention to cancel the visa was already under process.

    c.The second respondent failed to consider the fact that the applicant applied for the revocation of the cancellation of his visa on 22 June 2021, and a decision has not been finalised to date.

    d.Ignoring the pending decision of the applicant’s revocation submission, the applicant was put into migration detention.

    e.The second respondent put no weightage on the Applicant’s case papers (in the Applicant’s native language) and provide no opportunity to sought translation of documents in English.

    f.A decision to put the applicant in Migration detention is a clear denial of procedural fairness to the Applicant.

    6.The Second Respondent misconstrued or misapplied the s36 of the Act, and Schedule 2 of the Migration Regulations 1994, and for that reason fell into jurisdictional error.

    Particulars

    a)The second respondent overlooked the fact that the Applicant has a well-founded fear of prosecution upon his return to his home country and misconstrued the requirement of the refugee under the Act.

    b)As discussed in the High Court’s decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592, the Tribunal have to identify the live issues in the matter and required the Tribunal to identify the relevant information with a degree of particularity.

    7.The Second Respondent failed to take relevant consideration and for that reason fell into jurisdictional error.

    a)The second respondent failed to consider the oral evidence submitted by Mohan Subramaniam and Max Ralcevich.

    b)The second respondent failed to consider the written submission of the Applicant dated 11 June 2021 and 12 June 2021.

    c)The second respondent failed to consider the fact that the Applicant belongs to Tamil Hindu minority background, and they are heavily discriminated in Applicant’s home country.

    d)The second respondent concludes inconsistency in the Applicant’s series of incidents claimed in his protection visa application but never sought any clarification.

    e)The second respondent made irrelevant consideration saying that the applicant has delayed lodging the protection visa application since his arrival to Australia.

    8.The applicant believes he has a strong case, and he should be given a fair opportunity to be heard in Court.

    9.The second respondent failed to consider that each case has its own facts and merits and ought to consider on a case-by-case basis.

    10.The second respondent exercise of power is legally unreasonable and therefore exceeded its jurisdiction.

15. The applicant’s representative ceased acting for the applicant 3 days before the hearing. This followed the issue of a Notice of Intention to Withdraw dated 17 July 2022. No written submissions were filed on behalf of the applicant whilst his representative was acting. The applicant did not express knowledge of the grounds raised on his behalf.

16. I raised with the applicant whether he considered that he was able to proceed in these circumstances, or wished to seek adjournment of the hearing. I also sought to explain the role of the Court on judicial review, and how this differed from the role of the Tribunal. In response, the applicant stated that he wished to proceed with the hearing. He explained that he would be unable to afford another lawyer if the hearing were adjourned and that he had in any event become disenchanted with their services. The applicant informed the Court that he would prefer to proceed with the hearing on that day, representing himself. I accepted this, noting also that the applicant is in immigration detention and may legitimately wish to have these proceedings determined sooner rather than later.

17. I adjourned the hearing for a period to allow the grounds of application to be interpreted to the applicant as well as the Minister’s written submissions. I assured the applicant that I would consider the matters that had been raised by his former lawyers as well as what he wished to raise on his own behalf. These matters are considered below.

    Grounds 1 to 4

18. Grounds 1 to 4 set out background to the matter. They do not identify, much less establish, jurisdictional error.

    Ground 5

19. Ground 5 contended that the Tribunal failed to provide the applicant with procedural fairness.

    Particulars (a) to (d) and (f)

20. Particulars (a) to (c) complained that the Tribunal failed to consider that the applicant had applied for revocation of his visa cancellation and that this had not been finalised. However, the Tribunal did consider this in setting out the background to the matter at [5] of its decision. It was unclear from the particulars what else it was contended the Tribunal ought to have done with this information, nor how this was contended to have resulted in jurisdictional error.

21. Some indication was given in particulars (d) and (f). There, it was complained that the applicant was placed into detention “[i]gnoring the pending decision” on his revocation submission. It was contended that this was a denial of procedural fairness.

22. However, the basis of these contentions is similarly unclear. The Tribunal did not place the applicant in detention. This was presumably done by the Department, by reference to the requirements in s 189 of the Act. I therefore do not see how this is capable of demonstrating relevant legal error on the part of the Tribunal.

23. Whilst the applicant may well have found it more difficult to present his case from a detention centre, it is not apparent how this could be said to have relevantly denied him any of the procedural fairness obligations set out in Part 7 of the Act. The applicant was invited to attend a hearing before the Tribunal which he did attend (albeit by telephone). For reasons considered below, I have not accepted that the applicant was denied a meaningful hearing or the opportunity to give evidence and present arguments relating to issues that arose in relation to the review.

    Particular (e)

24. Particular (e) additionally took issue with the Tribunal placing no weight upon untranslated documents that were provided in the applicant’s native language. In this regard, the Tribunal was contended to have provided “no opportunity” for the applicant to seek translation of the documents.

25. However, there is no general duty upon the Tribunal to obtain translation of documents: Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [25]. I accept the Minister’s submission that such an obligation did not arise in this case, noting particularly that:

    (a)the applicant appears to have had substantial opportunity from a time perspective in which to obtain translations (noting that the protection visa application was made in 2017);

    (b)the Tribunal informed the applicant in its hearing invitation that “[a]ny documents or written submissions sent to us should be in English or translated by a qualified translator”; and

    (c)there is no evidence that the applicant explained the relevance of the documents to the Tribunal or sought additional time in which to obtain translations.

26. As no translations of the documents have been placed before the Court, additionally, I am unable to be satisfied that materiality has been demonstrated in the sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 (MZAPC) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

27. For the above reasons, I am not satisfied the ground 5 is capable of demonstrating jurisdictional error.

    Ground 6

28. Ground 6 contended that the Tribunal misapplied s 36 of the Act.

29. Particular (a) suggested that this was because the Tribunal “overlooked” the applicant’s well-founded fear of persecution. However, the Tribunal did not overlook that this was claimed by the applicant. Rather, it was not satisfied that such a well-founded fear existed (at [54]-[56]). This aspect of the ground did not specify any specific claim made by the applicant that the Tribunal was contended to have overlooked. Rather, it appeared to seek to engage the Court in impermissible merits review.

30. Particular (b) to the ground suggested that the Tribunal erred by not identifying issues to the applicant in the manner required by SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. However, this aspect of the ground did not specify what “issue” the Tribunal was contended to have failed to have put to the applicant. As summarised above, the Tribunal’s decision turned largely on adverse credibility findings that were based upon (a) his delay in applying for protection; (b) inconsistencies in his evidence; and (c) issues with his evidence regarding relocation within Malaysia. The Tribunal’s decision record (at [14], [20], [33]-[35], [41] and [46]) indicates that these matters were discussed with the applicant at hearing. There is no transcript in evidence to demonstrate that they were not.

31. Given the above, I do not consider that ground 6 is able to succeed.

    Ground 7

1. Ground 7 contended that the Tribunal failed to take into account relevant considerations. A number of particulars were provided in support of the ground, many of which raised separate allegations.

   Particular (a)

2. Particular (a) contended that the Tribunal failed to consider oral evidence from two witnesses from whom the applicant had requested that evidence be taken in his Response to the Tribunal’s hearing invitation. Those two witnesses had additionally provided statements in support of the applicant.

3. Section 426(3) of the Act relevantly provided that where an applicant has notified the Tribunal of a request to call witnesses within 7 days of the hearing notification, the Tribunal “must have regard to the applicant’s wishes but is not required to obtain” the requested evidence.

4. No point was taken by the Minister regarding the timing of the applicant’s Response. Rather, the Minister submitted that the Tribunal had “genuine regard” to the applicant’s request and exercised its discretion in a manner that was open to it (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304 at [38]-[56] per Kenny and Lander JJ and AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 at [44]-[69] per Tracey and Mortimer JJ).

5. The Tribunal advised the applicant through correspondence dated 2 February 2022 that his request to take oral evidence had been refused. The Tribunal stated as follows in relation to the request at [14] of its decision (errors in original):

   14.The applicant had requested that the Tribunal take oral evidence at the Tribunal hearing from Mohan Subramaniam and Max Ralcevich when he returned the completed 'Response to hearing invitation' form. The applicant also included their written statements dated 12 June 2021 and 11 June 2021 respectively. The applicant did not identify how the witnesses’ oral evidence related to the applicant's protection claims or demonstrate how the applicant met the statutory requirements of s 36(2)(a), (aa), (b) or (c) of the Act. The Tribunal read the statements and they disclose no relevance to Australia's protection claims. The Tribunal declined the request to take oral evidence from those witnesses for these reasons.

6. These reasons indicate that the Tribunal had genuine regard to the applicant’s request, but was not satisfied as to the material relevance of the proposed evidence in circumstances where this had not been explained and was not apparent from the statements provided. The underlying statements are expressed to be from the applicant’s friend and the General Manager of his previous employer. They appear to be general character references relating to the applicant’s criminal conviction and associated remorse. They have no direct, obvious relevance to the applicant’s protection claims (although they might be said to have been indirectly relevant to the extent that they related generally to his character or credibility).

7. In these circumstances, I accept the Minister’s submissions that it was open to the Tribunal to refuse the applicant’s request for the reasons that it gave. The Tribunal was not obliged to find that the general character references indicated from these witnesses were self-evidently capable of materially bearing upon his protection claims. No reference to those claims was made within the statements and, as the Tribunal observed, the applicant had not identified how the proposed oral evidence related to his claims.

8. I am therefore not persuaded that this particular to ground 7 is capable of demonstrating jurisdictional error.

   Particular (b)

9. Particular (b) complained that the Tribunal failed to take into account the “written submission” dated 11 June 2021 and 12 June 2022. Those dates match the dates of the witness statements considered under particular (a). I have found, for the reasons that I have given, that the Tribunal genuinely considered that evidence and that it was open to it to have concluded that those statements had no material relevance to the applicant’s protection claims.

10. Two additional, similar statements were provided to the Tribunal but were not expressly referred to in the Tribunal’s reasons. However, is well accepted that the Tribunal is not required to refer to every item of evidence before it. Non-reference to a particular item does not necessarily mean that it was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46].

11. Given the similarities between the two general character references that were not expressly referred to in the decision and the ones that were, I find that the more likely inference is that the Tribunal considered that those additional references (like the ones referred to at [14]) were incapable of materially bearing on its decision. In light of the Tribunal’s findings at [14], I am also not persuaded that any failure to consider the additional references could realistically be said to have deprived the applicant of the possibility of a successful outcome.

12. It follows that this particular does not demonstrate jurisdictional error.

    Particular (c)

13. Particular (c) contended that the Tribunal failed to consider that the applicant belongs to a Tamil Hindu minority background and that they are heavily discriminated against in Malaysia.

14. In this regard, the applicant claimed that he faced harm on account of:

    (a)his opposition to discrimination against Hindu Tamils and the peddling of drugs, which was claimed to have resulted in drug peddlers bribing police to act against him; and

    (b)action taken by the authorities to possess his lands because he was a Tamil farmer.

15. These claims were considered by the Tribunal, at [22] and [27]-[28]. At [51]-[54], the Tribunal rejected the applicant’s claims to face harm as “a part of a Tamil Hindu minority” who opposes their discrimination by the government. It also rejected his claims to be targeted by the police “because he is a Tamil Hindu whose farmland has been identified for distribution to Malays”.

16. I therefore find that the Tribunal considered and dealt with the claims that were made by the applicant in relation to his Tamil Hindu background.  This particular to the ground is unable to succeed.

    Particular (d)

17. Particular (d) complained that the Tribunal did not seek clarification from the applicant in relation to the inconsistencies it found within his evidence.

18. However, the particular does not identify any inconsistency that was identified but that the Tribunal did not put to him for comment. As noted above, the Tribunal’s decision record indicates that the Tribunal discussed with the applicant the inconsistencies that it had identified in his evidence (at [20], [33]-[35], [41] and [46]). There is no transcript in evidence capable of demonstrating that it did not.

19. The particular also does not explain the basis of the Tribunal’s contended obligation to put to the applicant such inconsistencies. For the reasons given above, I do not accept that the Tribunal fell in to the species of error considered in SZBEL. The Tribunal’s “subjective appraisals, thought processes or determinations” were not matters required to be put to him under s 424A of the Act: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; 206 ALR 471 at [24] per Finn and Stone JJ.

20. In the above circumstances, this particular is incapable of demonstrating jurisdictional error.

    Particular (e)

21. Particular (e) contended that the Tribunal had regard to an irrelevant consideration in relying upon the applicant’s delay in lodging his protection visa application as a matter relevant to his credibility.

22. It has long been held that delay is a legitimate matter to consider in assessing credibility, so long as it is not treated as being determinative: SZJYM v Minister for Immigration & Anor [2008] FMCA 652 at [61]. In the present case, the Tribunal was concerned by the applicant’s delay as well as other issues in his evidence (including the inconsistent explanation given for the delay). These matters were logically probative of the applicant’s credibility. As the Tribunal explained, this was in circumstances where the applicant had claimed (inter alia) to have come to Australia seeking protection but had waited until a significant proportion of the time allowed on his visa had expired before seeking protection.

23. Particular (e) is therefore incapable of demonstrating jurisdictional error.

    Grounds 8 to 10

24. Grounds 8 to 10 contended that the applicant had a strong case, that the Tribunal failed to consider it according to its own facts and merits and that the Tribunal’s exercise of power was legally unreasonable.

25. These allegations were entirely devoid of particularisation.

26. The applicant’s belief or otherwise regarding the strength of his case is not a legally relevant ground of review.

27. As summarised above, the Tribunal does appear to have considered the case according to its own facts and merits. The Tribunal gave detailed reasons for rejecting the applicant’s claims. Those reasons were based, essentially, upon inconsistencies and other issues it had identified in his evidence, as well as upon his delay in applying for protection. Those reasons were intelligible. They demonstrated a logical connection between the evidence that was identified and the conclusions reached.

28. In the absence of any identified, legally recognisable basis for the errors raised under these grounds, they are unable to succeed.

    Matters raised at hearing

29. The applicant raised a number of matters orally at hearing. Many of those matters were directed towards his character generally, his remorse for his offending and his desire to contribute to Australia. The applicant also endeavoured to persuade the Court that his protection claims were true.

30. In this regard, I sought to explain the limitations of the Court’s role on judicial review. This Court has no power to simply revisit and remake the factual findings of the Tribunal, or its conclusions regarding the ability of the applicant to qualify for the visa. All this Court can do is determine whether the Tribunal’s decision was affected by any material, legally relevant error such that it should be required to re-determine the application made to it according to law.

31. The applicant identified two additional matters which, if supported, might have potentially gone to demonstrating such an error. The first was that the interpretation during his Tribunal hearing was inadequate. The second was that he was given no opportunity to explain his case to the Tribunal and had instead been required to give ‘yes or no’ answers.

32. However, as I discussed with the applicant, a difficulty with both of these contentions is that there is no transcript before the Court showing exactly what was or wasn’t said at the hearing before the Tribunal.

33. I made a number of attempts to elicit from the applicant a specific example of anything he had said during the Tribunal hearing that had not been properly interpreted to the Tribunal (as well as an explanation of how he knew this had occurred). The applicant suggested that answers responding to inconsistencies may not have been correctly interpreted. However, he was unable to give any specific example in this regard. The applicant did take specific issue with what he said was the last question that was put to him by the Tribunal, which he knew the interpreter had not interpreted correctly because he has some understanding of English. However, even if this could be demonstrated I do not see how this would be capable of establishing jurisdictional error given the applicant’s apparent understanding of what had been actually asked by the Tribunal.

34. The material before the Court does not support the applicant’s claim that he was required to give only ‘yes or no’ answers to questions. The Tribunal’s decision at [27]-[35] records a number of detailed examples of evidence that was apparently given by the applicant and went beyond a mere ‘yes or no’.

35. Given these indications from the evidence, and in the absence of any evidence capable of supporting the applicant’s claims regarding the conduct of the hearing, I am not satisfied that the matters raised are capable of demonstrating jurisdictional error.

    CONCLUSION

36. For the above reasons, I conclude that the application must be dismissed.

37. I will hear the parties in relation to costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       16 August 2022