AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 242
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 242
File number(s): SYG 365 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 31 March 2023 Catchwords: MIGRATION – Whether Tribunal failed to take into account evidence – whether failure to consider applicant’s circumstances – whether failure to consider integers of applicant’s claims – where applicant in detention yet seeking to prolong proceedings – multiple adjournments granted – where applicant retained multiple representatives who made competing written submissions Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 425, 476, 499
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AMF15 v Minister for Immigration and Border Protection (2016) 338 ALR 551
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
Singh v Minister for Immigration and Border Protection [2014] FCA 1345
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of hearings: 21 July 2022
26 September 2022Place: Sydney The Applicant: In person Counsel for the Respondents: Mr B Kaplan Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 365 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the written submissions filed at 10:04pm on 10 October 2022.
2.The application filed on 8 March 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application to show cause filed with this Court on 8 March 2022, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 February 2022, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the application a Protection (Class XA) visa (visa).
Background
The applicant is a citizen of the Republic of India who first entered Australia in 2008, travelling on a student visa (Court Book (CB) 57 at [9] to [10]).
The applicant has an extensive migration history which is summarised by the Tribunal in its reasons for decision (CB 567 to 568 at [24] to [26]), but is unnecessary to reproduce for the purposes of these proceedings and reasons. Relevantly, on 29 September 2016, the applicant lodged an application for a protection visa (CB 1 to 59). Enclosed with that application was a statement by which the applicant set out his claims for protection. The applicant claimed to fear persecution (including at the hands of members of his family) by reason of having married a Christian woman in 2011, having been “influenced by the teachings of the Catholic Church” and abandoning his Sikh religion (CB 57 at [8], [11] and [17]).
On 9 March 2021, the delegate made a decision to refuse to grant the visa to the applicant (CB 309 to 320). The delegate accepted that the applicant suffered from mental health issues but did not accept that he was a practising Christian or that he had been threatened by members of his family or the Khap Panchayat (a group which socially governed marriage based on tradition) (CB 313 to 315). The applicant was found not to be a refugee within the meaning of s 5H of the Migration Act 1958 (Cth) (Act) (CB 316). The delegate went on to consider whether the applicant would be significantly harmed if returned to India on account of his mental health issues and concluded that he would not, because there was no information to suggest that he would be intentionally denied access to health care (CB 319 to 320).
On 23 March 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 321 to 327).
On 14 May 2021, the Tribunal invited the applicant to give evidence and present arguments at a hearing on 24 June 2021, facilitated via videoconference due to the COVID-19 pandemic (CB 565).
Following a request from the applicant, based on a scheduling clash with his ongoing family law proceedings, the Tribunal postponed the hearing and rescheduled it to 31 August 2021, to be held in person.
Due to the intervening “stay-at-home order” of the NSW Government, the applicant was later advised that the format of the hearing would be changed to videoconference. On 17 August 2021, the applicant requested that the upcoming hearing be rescheduled, because his Legal Aid application had been refused. The Tribunal agreed, and the hearing was postponed to
3 November 2021, again to be held via videoconference.
On 28 October 2021, for reasons unrelated to the applicant, the Tribunal rescheduled the hearing to 1 December 2021, via videoconference. On 22 November 2021, the applicant responded to the hearing invitation, and requested that the Tribunal take evidence from two witnesses, one of whom was his sister. On the same day, the applicant requested another postponement, saying that he did not have legal representation but would be represented by a Ms Perin (who represented him in his family law proceedings).
On 22 November 2021, Ms Perin advised the Tribunal that she only acted for the applicant in his family law matter and would neither attend the hearing, nor represent him. The following day, the Tribunal, wrote to the applicant to refuse the adjournment request (CB 565 at [11]). Under cover of the same letter, the Tribunal provided a form to the applicant to appoint a representative and advise that it would give any representative who the applicant appointed, an opportunity to provide post-hearing submissions.
On 26 November 2021, the applicant appointed his sister as his authorised recipient. A few hours later, the applicant withdrew that authority and advised that his sister would not attend the hearing (CB 566 at [12]). The following day the applicant’s sister advised the Tribunal that she would attend the hearing and also remain as the applicant’s authorised recipient (CB 566 at [12]).
On 30 November 2021 (being the day before the hearing), a nomination form was provided for a new solicitor for the applicant who indicated that he would attend the hearing (CB 566 at [13]).
On 1 December 2021 the applicant appeared before the Tribunal via videolink to give evidence and present arguments (CB 566 at [14]). The applicant’s solicitor was present in the online hearing forum, as was the applicant’s sister who also gave evidence (CB 450 to 451). The hearing information record indicates that at the conclusion of the hearing the applicant was granted further time in which to provide additional written submissions by 13 December 2021 (CB 452).
At 11:59am on 13 December 2021, the applicant’s solicitors wrote to the Tribunal and requested an extension of time in which to provide written material (CB 453). The Tribunal granted an extension until 20 December 2021 (CB 454).
On 17 December 2021, the applicant’s solicitors provided documents to the Tribunal in support of the application for review in two tranches attached to emails sent at 3:59pm (CB 455 to 484) and 9:15pm (CB 485 to 510). The first tranche of documents included country information, a statement made by the applicant’s sister (CB 456 to 462) and written submissions prepared by the applicant’s representative (December submission) (CB 480 to 484). The second tranche of documents included online news articles, a statutory declaration from a solicitor who represented the applicant in a criminal proceeding before the NSW Local Court (CB 498 to 502), a character reference from the applicant’s sister in those NSW Local Court proceedings (CB 503 to 504), a statutory declaration made by the applicant’s sister on 2 May 2021 (CB 505 to 508) and a statutory declaration from a friend of the applicant, made on 4 May 2022 (CB 509 to 510).
On 28 January 2022 the applicant’s solicitor provided the Tribunal with documents relating to criminal charges against the applicant (CB 513 to 530), including sentencing remarks of the NSW Local Court (CB 521 to 530).
On 19 January 2022 the Tribunal wrote to the NSW Local Court’s Parramatta District Registry seeking documents (CB 532), to which the NSW Local Court responded on 20 January 2022 (CB 531) and provided additional documents (CB 534 to 561).
The December submission confirmed that the applicant sought protection on the basis that (CB 480):
…he is a convert from Sikh faith to Christianity, even if he did not formally convert to Christianity and “eared retaliation from sections of his community, including his family, and other extremist religious groups identified as Khap Panchayats.
The December submission also included a claim that the applicant:
(a)feared harm from the Khap Panchayat because of his marriage to a Christian woman when instead he should have been married to a woman from his community in India (CB 480 to 481); and
(b)was very vulnerable due to his poor mental health and that he would face harm if he were returned to India (CB 482 to 484).
On 8 February 2022, the Tribunal notified the applicant (via his solicitor as authorised recipient (CB 447)) of its decision, made that day, affirming the decision of the delegate not to grant the applicant the visa (CB 562 to 597). The Tribunal’s case notes indicate that steps were taken by the Tribunal to ensure that the applicant was notified of the decision at a time when he would have access to support, given his risk profile due to his mental health issues (CB 598 to 599).
TRIBUNAL DECISION
The Tribunal set out the background to the application for review and the criteria for a protection visa, contained in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), and the relevant mandatory considerations under s 499 of the Act (CB 565 to 567).
The Tribunal then summarised the evidence advanced by the applicant in support of his claims, as well as independent information, which included:
(a)a written statement by the applicant to the Department which detailed his claims for protection (CB 568 at [26]) and a statement by his sister which had been provided to both the Department and Tribunal (CB 560 [27]), each reproduced in full;
(b)documents (obtained by the Tribunal) from the new Local Court which indicated multiple charges laid against the applicant, resulting in convictions and subsequent sentences;
(c)evidence given by the applicant in the interview with the delegate which took place on 17 December 2020 relating to his criminal detention for breaching an Apprehended Violence Order (AVO), the applicant’s ongoing mental health issues for which he had been prescribed various medication and sought counselling, his estranged relationship with his parents due to having married a Christian girl, and his delay in applying for a protection visa following his arrival in Australia;
(d)various medical documents which had been provided to the Department, and a number of internet articles dated between 2018 and 2021 submitted after the Tribunal hearing;
(e)an additional statement by the applicant provided after the Tribunal hearing detailing, inter alia, the “religious, caste, political and media landscape in India”;
(f)a written submission dated 9 December 2021 from the applicant’s representative reiterating claims of harm based on the applicant’s conversion to Christianity, the circumstances surrounding the applicant’s relationship with his partner, and his mental health issues;
(g)a letter from the applicant’s sister dated 20 September 2020;
(h)the three statutory declarations referred to at [15] above; and
(i)a 2020 DFAT Report about India.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. It was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, he faced a real risk of significant harm (CB 594 at [105]). The Tribunal did however acknowledge that, based on the evidence provided, “not insignificant” mental health issues were experienced by the applicant (CB 589 at [63]).
The Tribunal found there to be credibility issues with core claims made by the applicant as to he faced harm in India based on religion, and not having entered into an arranged marriage (CB 589 [63]). The Tribunal separated the bases for those credibility claims into six distinct categories (CB 589 to 592 at [65] to [87]) and considered those issues cumulatively (CB 592 at [88]), as follows:
(a)the applicant’s written claims for Protection made in 2016 were advanced only on the basis of his having converted to Christianity, not his refusal to enter into an arranged marriage (CB 589 to 590 at [65] to [66]);
(b)the applicant submitted that if he returned to India he would have “no religion”. The Tribunal took the view that the circumstances supported a claim that he would face harm as a result of his religion, including his past conversion to Christianity (CB 590 at [69] to [72]);
(c)inconsistent evidence had been provided by the applicant and his sister as to whether the village Khap Panchayat imposed a financial penalty on the their family as a result of his having not entering into the arranged marriage (CB 590 at [73] to [77]);
(d)inconsistent evidence provided by the applicant at the Tribunal hearing in contrast to the interview with the delegate about his paternal grandparents and their circumstances as a result of his having not entered into the arranged marriage (CB 591 at [78] to [80])
(e)the applicant’s return to India to visit his sick mother was inconsistent with previous claims of a “severe breakdown” in their relationship (CB at [81] to [86]); and
(f)the delay by the applicant before making the application for protection (CB 591 at [85] to [87]).
The Tribunal was not satisfied that the applicant’s previous conversion to Christianity constituted a basis upon which he would be subjected to requisite harm on return to India (CB 592 at [89]). The Tribunal accepted that there existed an agreement that the applicant would enter into an arranged marriage, however did not accept the extent of the claimed consequences of his refusing to do so (CB 592 at [90]). Namely, that a financial penalty was imposed on the applicant’s family or that the applicant’s paternal grandparents were driven out of the village as a result (CB 592 at [91]). Although the Tribunal accepted there may have been some degree of adverse social impact, it considered the claims to be “significantly exaggerated” (CB 592 at [91]).
In relation to the applicant’s generalised claims that he would face economic difficulties on return to India and that India was not safe, the Tribunal was not satisfied that this met the relevant criteria for protection (CB 592 to 593 at [94] to [95]).
The Tribunal accepted that while treatment in India for mental health issues was substandard by reference to Australia, inferior treatment was not sufficient to meet the protection criteria. The Tribunal did not accept that that there was a real chance of the applicant facing harm due to mental health issues because of deliberate conduct by others resulting in degrading treatment or punishment, or cruel or inhuman treatment or punishment. The Tribunal accepted that the applicant had demonstrated suicidal ideation, and that this may worsen if he were to return to India, but that did not meet the requisite harm prescribed by the legislation.
APPLICATION TO THIS COURT
Just as the applicant’s migration history is extensive, so too are the procedural events in this case.
On 8 March 2022 the applicant commenced these proceedings by filing an application to show cause. At all times since the commencement of the proceedings, the applicant has been in immigration detention and, the Court has been mindful of this factor. However as will be seen from the events set out below, the applicant himself appears to not have been troubled by the prolongation of these proceedings by adjournments and the late raising of multiple matters for consideration.
By the originating application, the applicant provided a particular Gmail address as being an email address at which he agreed to accept service (Gmail address). On 3 May 2022 a Registrar of this Court made orders by consent which provided, inter alia, for the applicant to file and serve an amended application and his written submissions 28 days before the final hearing which was listed at that time before me on 21 July 2022. Despite that opportunity, nothing further was filed by the applicant as ordered. The first respondent’s written submissions were filed in accordance with the Court’s orders on 7 July 2022.
First hearing and adjournment application
The applicant first appeared before me on 21 July 2022 for hearing (first hearing). He was unrepresented. The first respondent was represented by Counsel.
In advance of the first hearing, the applicant had requested an interpreter in the Hindi language. When the matter commenced, the applicant told the Court that he needed an interpreter in the Punjabi language instead. Notwithstanding this last minute request, the Court was fortunate that the interpreter was qualified to interpret in both Hindi and Punjabi. Accordingly, the hearing was able to continue. Also prior to my ascending the Bench at the first hearing, the interpreter had interpreted the first respondent’s written submissions to the applicant at the request of the Court.
At the commencement of the first hearing the following documents were received into evidence:
(a)Affidavit of the applicant made 5 March 2022 in support of the originating application, which (due to formal deficiencies) I received as a written submission;
(b)Affidavit of Service of Cormac Burke made 14 July 2022 and filed for the first respondent (Burke Affidavit);
(c)Court Book which was tendered for the first respondent and marked as Exhibit “1R”; and
(d)letter from Sparke Helmore Lawyers to the applicant dated 14 July, which was tendered and marked Exhibit “2R”.
After explaining to the applicant the process which would be followed, and identifying the documents which were before the Court, he was invited to speak to the grounds in his application. It was only at this juncture, and in response to an invitation to address the first ground of review, that the applicant said:
Your Honour, but I have no idea that this hearing is today, and 10 minutes before I was told in the detention centre that I’ve got the hearing, and they put me in the van and just bring me to the hearing.
After reviewing the Court file, which indicated that the applicant’s Gmail address had been included in all relevant correspondence from the Court and the first respondent in relation to the listing of the first hearing, I indicated to the applicant that it appeared that he had been on notice in a number of ways about the hearing. I asked whether, having regard to that correspondence, he still wished to assert that he was not told until that very morning, he was required in Court. The applicant replied:
Yes, your Honour. In detention centre, whatever we have been given officially, they are being signed by the – like, the applicant. You can consult with them that if I get those type of – any documents, but, like, this book, I had it – first time, they never give it to me. I had one small booklet, but that was for the other case, and for this matter, I have been, like, on medication, and I’m mentally upset. I don’t really, like, check my email.
The applicant then explained that his sister also monitored his Gmail address for him. He said that he was not prepared for the hearing. I indicated to the applicant that while I accepted he was not prepared for the hearing, the material before the Court did not support the proposition that he had no notice of it and perhaps that he ought to have approached the checking of his emails with greater diligence. The applicant then made submissions to the effect that he needed time to consult a lawyer and that he was juggling five separate Court proceedings across an array of jurisdictions. Upon further exploration it became clear that the applicant did not need time to consult a lawyer whom he had already retained for these proceedings. Rather, he was seeking an adjournment in order that he might take steps to find and retain such a lawyer.
After confirming to the Court that the applicant had also not been represented in Federal Court proceedings a few weeks earlier (which the applicant had initially suggested were related to the instant case but, it transpires, were not), Counsel for the first respondent opposed the applicant’s adjournment application on a number of bases, which included that:
(a)all the documents before the Court indicated the applicant had been served with all relevant documents, and notified of the hearing, by email to his Gmail address;
(b)the applicant was notified well in advance of the listing that the matter would be heard on this date;
(c)the applicant had not provided a satisfactory explanation as to why, in the 4.5 months since the proceedings were commenced, he had not taken steps to secure legal representation or, if he had taken such steps, what those steps were. There was also said to be no evidence before the Court to suggest that there was any prospect of the applicant securing legal representation going forward, such that the Court could be confident that if an adjournment were granted, the applicant would be legally represented by the time that the matter came on for hearing;
(d)an adjournment lacked utility and would be a burden on the Court’s resources; however
(e)the first respondent did not claim any prejudice by reason of an adjournment which could not be cured by a costs order.
In assessing the applicant’s adjournment request the Court considered the basis upon which the applicant said he required the adjournment, namely because of his desire to obtain a lawyer. There was force in the submissions for the first respondent that the applicant appeared to have been neither diligent nor indicated any steps already taken, let alone steps he might now take to secure representation.
The other issue was the applicant’s assertion that he was unprepared. A review of the annexures to the Burke Affidavit reveals that while emails had been addressed to the applicant’s Gmail address, on the face of the 7 July 2022 correspondence annexed[1] and the letter which formed Exhibit “2R” the email address was incorrect, insofar as someone had typed it manually into correspondence with the applicant’s email handle but the ending “@hotmail.com” and not “@Gmail.com”.
[1] Annexure CMB-3 to the Burke Affidavit at page 13
While it can be inferred that (based on the email printout which attended the 7 July 2022 letter which formed part of Annexure “CMB-3” to the Burke Affidavit) that letter was probably sent to the Gmail address, the Court had no such corroborating email correspondence in relation to Exhibit “2R”. Exhibit “2R” said on its face that it was sent by Express Post, yet there was no corroboration of that fact either (such as a receipt sticker or photocopy of the Express Post enveloped with tracking data): Cf Singh v Minister for Immigration and Border Protection [2014] FCA 1345 at [5] per North J.
I indicated to the parties that while there may be some doubt as to the applicant’s version of events that he had been put in a van that morning with only 10 minutes notice that he was going to be taken to Court, there was no material before the Court which excluded that possibility. Further, while the applicant had not objected to the Court receiving the Court Book into evidence, he had later claimed from the Bar table that the Court Book had only very recently been given to him before the hearing.
Issues pertaining to the service of the Court Book and notice of hearing were traversed. At the Court’s direction and so as to avoid any doubt that the applicant possessed a hard copy, the applicant was given another copy of the first respondent’s Court Book by the solicitor for the first respondent at the first hearing.
However, providing the Court Book afresh did not allay the possibility that the applicant had not had a proper opportunity to consider it. The Court was not given material going to the question of the procedures (either general or specific) utilised in the Villawood Immigration Detention Centre for the distribution of mail, nor which could categorically establish that the applicant’s version of events (about having not been given the Court Book in a timely manner after its delivery to the Detention Centre), was manifestly implausible.
While not persuaded that the matter should adjourn to enable the applicant to obtain legal representation (noting that there is no right to legal representation in migration proceedings)[2], the Court was concerned that the applicant may have been disadvantaged by the circumstances which attended receipt of serviced documents because of his detention.
[2] AMF15 v Minister for Immigration and Border Protection (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ and SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J.
Accordingly, I indicated that the matter would adjourn on the basis that the applicant was to meet the first respondent’s costs of the adjournment and that the date to which the matter adjourned, was one which was suitable to Counsel for the first respondent. This was explained to the applicant who consented to that course. Given the unavailability of Counsel for the first respondent for some months, the period of the adjournment had the collateral benefit to the applicant that he now had ample time in which to seek legal representation, if that was something he desired. Given that the date would be set in Court and also that the applicant had been given another copy of the Court Book in Court, it was also explained to the applicant that on the next occasion there could be no doubt that he had the Court Book and was aware of the hearing date.
Accordingly, the matter adjourned with consequential orders made which allowed the applicant to file any amended application and required the applicant file written submissions. Prior to adjourning, I requested that the interpreter stay in Court and that the applicant not be taken back to Villawood Immigration Detention Centre until such time as the sealed orders had been produced by my Associate, and the interpreter had had the opportunity to interpret them to the applicant. I understand that this occurred.
The matter was adjourned for a hearing on 22 September 2022 (second hearing).
Second hearing and adjournment applications
Despite being almost 2 months in duration, in the period between the first hearing the second hearing, the applicant did not avail himself of the further grant of leave to file an amended application, nor did he comply with the order that he file written submissions.
At the second hearing the applicant, who appeared unrepresented, was again assisted by an interpreter. The Court arranged for this to be the same interpreter from the first hearing, lest there be any suggestion that the language which the applicant preferred was incorrect. The interpreter was asked again by the applicant to interpret in the Punjabi language, albeit the applicant actually engaged with the Court in English for much of the hearing. The first respondent was again represented by Counsel. The applicant and the interpreter did not appear to have any difficulty understanding one another, nor did the applicant have any difficulty engaging with the Court.
At the outset of the hearing, the applicant told me from the Bar table that he had recently had some discussions with a lawyer (whom he did not name), to whom he sent documents, including his only copy of the Court Book (the one received at the first hearing). He said he consulted said person in the week preceding the hearing and also apparently paid some money to him, but the lawyer was unable to prepare written submissions or appear today. No evidence was forthcoming from the applicant to corroborate this apparent retention of a lawyer and nothing was said for the first respondent even though it emerged much later (and during the applicant’s submissions in reply) that the solicitors for the first respondent had been communicating with said lawyer.
In the early stages of the second hearing, the applicant did not expressly seek an adjournment, but he did say that he did not feel he was able to speak to the grounds, which he claimed his sister had drafted.
It was during the course of identifying the documents which had been received into evidence on the last occasion, that it became apparent the applicant again did not have the Court Book with him, it having allegedly been sent to the lawyer (see [50] above). The Court’s copy of the Court Book had been marked by me, and therefore not able to be provided. Counsel ultimately provided the applicant with his own hard copy of the Court Book, as soon as his instructing solicitor was able to access an electronic version on a laptop. By the time that occurred the applicant had already been given a chance to address the grounds. Even though it would result in a second ‘round’ of oral submissions, I asked the applicant if he wished the Court to adjourn briefly in order that he could compose his thoughts with the benefit of the hard copy Court Book, and then he could say anything additional he wished. The applicant said he did want such an opportunity. Accordingly, I adjourned for 20 minutes.
When the hearing resumed, the applicant raised additional matters which are recorded and addressed below at [78] to [79] and [94] to [98]. While the events which will now be set out occurred at the conclusion of the second hearing, it is convenient to record them here, prior to addressing the substantive grounds of review.
The applicant waited until after the mid-hearing adjournment at the second hearing to make an application that the hearing adjourn to a third occasion. The two bases of this new adjournment request appeared to his desire to obtain legal representation and a suggestion that he was having difficulty in engaging in the hearing.
In opposing the adjournment application, Counsel for the first respondent said that to the extent it was to enable the applicant further time to seek legal representation, the applicant had had ample time since the last adjournment to do so and yet this had not yielded a result. Counsel for the first respondent reiterated that there is no right to legal representation in a migration matter. At this juncture the Court was still unaware that the first respondent’s solicitors had, in fact, been communicating with the lawyer that the applicant claimed to have retained. In relation to the suggestion that the applicant was struggling to engage with the Court in relation to the hearing, Counsel for the first respondent said that if the Court was not so satisfied that the applicant was able to sufficiently engage, the first respondent would consent to a brief time for applicant to file a post-hearing written submission.
The adjournment was refused.[3] The Court was not satisfied that there was utility in a further opportunity to obtain legal representation. The Court was also satisfied that the applicant had been able to engage with the Court. The applicant was given the opportunity to make any further submissions he wished to before the hearing concluded. The applicant repeated this adjournment request during the course of which he made a submission to the effect that his solicitor had been corresponding with the first respondent’s solicitors.
[3] Detailed reasons were given at the second hearing and form part of that date
At that point, I asked Counsel for the first respondent whether or not this assertion was accurate. Counsel confirmed it was and tendered a chain of correspondence between a lawyer and Sparke Helmore Lawyers. The chain of email correspondence spanned from 1 September 2022 to
19 September 2022 was marked Exhibit “3R”.
Exhibit “3R” demonstrates that the first respondent’s solicitors wrote to the applicant on
1 September 2022 at his Gmail address. That email observed that at the first hearing the applicant said that he wished to seek legal representation, and asked him whether he had since done so. The applicant was requested to provide the contact details of any such lawyer. The correspondence (belatedly) noted that any documents the applicant wished to file were required to have been filed and served on 29 August 2022 (which date had now passed), and that no such documents had been provided.
On 6 September 2022 the first respondent’s solicitors received an email from the lawyer engaged by the applicant. That email said (anonymisation added):
I have received instructions from Mr [AYT22] in this matter. Please send me by email a copy of the court book, materials and submissions filed in this matter on behalf of the Minister? I understand the material was sent to the applicant at Villawood by post. Mr [AYT22] is copied into this email.
Later on 6 September 2022 the solicitors for the first respondent replied by email to the lawyer with the applicant’s Gmail address copied. That email requested that the lawyer file a Notice of Address for Service in the matter to make the Court aware of his representation of the applicant. That email also set out the relevant orders made at the first hearing and attached the first respondent’s submissions dated 7 July 2022 and part one of the sealed electronic version of the Court Book. The remaining two parts of the electronic Court Book were sent in the minutes which followed, attached to two additional emails.
On 8 September 2022, the solicitors for the first respondent wrote to the lawyer again and asked for urgent confirmation as to whether the applicant intended to provide any amended application and/or Affidavit/s and written submissions. A response was requested by close of business that day. The first respondent’s solicitors reserved the right to seek an extension of time to file any necessary further documents, and any costs thrown away occasioned by the delay.
On each of 9 September 2022 and 16 September 2022, the first respondent’s solicitors again wrote to the lawyer, with the applicant’s Gmail address copied. There is no evidence before me that the lawyer responded. The applicant said from the Bar table that he too had received no responses from the solicitor in the week preceding the second hearing.
At no time has the lawyer filed a Notice of Address for Service in the proceedings.
The applicant said from the Bar table that he had paid the lawyer $1,500 for an initial consultation comprised of the lawyer looking at the applicant’s documents. The applicant said that he was told he would need to pay the solicitor a further $7,000 in order to have him draft written submissions and come to Court. There was no evidence, nor was there any assertion by the applicant, that he paid this further sum. Otherwise, the chronology of events recounted by the applicant was somewhat vague, but what was clear was that the orders of the Court relating to the filing of the applicant’s documents, were not complied with.
As I explained to the applicant, even on his version of events, the lawyer did not appear to have accepted a retainer other than to have initially consulted and reviewed the applicant’s documents. While I accept that by the 6 September 2022 email he sent to the first respondent’s solicitors,[4] the lawyer said he had “received instructions from Mr [AYT22] in this matter” the lawyer did not say he was generally retained, nor that he would be drafting any documents or appearing. Further, when specifically asked to file a Notice of Address for Service and respond to correspondence, he did not do so.
[4] Which forms part of Exhibit “3R”
Grant of leave to file post-hearing submissions
Based on the material before the Court, I was not satisfied that the applicant retained the lawyer for the purposes of the second hearing, albeit it can be accepted that (as a lay person) the applicant may not have understood the nuance of this.
With the benefit of Exhibit “3R”, knowing that there was a lawyer who may yet still assist the applicant, the Court granted him a further 14 days in which the applicant must file written submissions, with a consequential grant of leave to the first respondent to file any submission in reply.
This additional opportunity to file submissions was on the basis that the applicant might usefully be assisted by the lawyer with whom he had already engaged to a degree, and not because (as had been proffered by the first respondent earlier as an alternative to adjourning (see [55] above)) the Court had any concerns about the applicant’s ability to understand and engage with the hearing by reason of his mental health issues, or for any other reason.
By orders which were made at the conclusion of the second hearing (September Orders), the applicant’s written submissions were due to be filed and served on or by 10 October 2022, with an opportunity for the first respondent to reply on or by 24 October 2022. After the second hearing the following occurred:
(a)at 10:04pm on 10 October 2022 a set of written submissions prepared by Counsel were lodged on the Court’s electronic portal for the applicant by a solicitor[5] (applicant’s written submissions); and
(b)at 12:01am on 11 October 2022 a different set of written submissions, bearing a signature block which said they were prepared by the applicant himself, was lodged on the Court’s electronic portal. Despite the alleged authorship, these submissions appeared to have been drafted by a person with some legal training.
[5] Noting that neither Counsel nor the solicitor referred to in this paragraph are the lawyer referred to by the applicant at the second hearing whose correspondence forms part of Exhibit “3R”
At 4:36pm on 11 October 2022, the solicitor referred to in [69(a)] above wrote to the Court Registry by email (copying (inter alia) the applicant at his Gmail address), noting the two sets of submissions had been filed and stating:
I have sought instructions from the Applicant and he wants to rely on the submissions lodged at 10.04pm and withdraw/abandon the other lodged submissions.
At no time has the solicitor referred to in [69(a)] and [70] above, filed a Notice of Address for Service to formally record their representation of the applicant in these proceedings. The applicant appears to remain unrepresented, despite Counsel having participated for what seems to be the limited purpose of preparing the applicant’s written submissions.
Each of the submissions which is referred to at [69] was filed outside of the time allowed by the Court by the September Orders. To the extent that the applicant’s written submissions require an additional grant of leave to be relied upon, I will so order. Given that the applicant apparently does not press the submissions referred to at [69(b)], no leave is required but I would in any event have refused it. Quite why it was that two sets of submissions were advanced for the applicant almost simultaneously is unknown, but it is open to surmise that the applicant sought assistance from (at least) two legal practitioners and did not tell either one about the other. In any event, the second set of written submissions alleged eight jurisdictional errors, which in essence would have required an amended application.
The applicant was not granted leave to amend as part of the September Orders and given the background to this matter any such application would have needed to be formally made and given the extremely late timing of it, properly explained and no doubt the first respondent would have wished to be heard on the issues of prejudice and/or costs.
Overall, by the conclusion of the hearings in this matter the applicant had:
(a)been granted an adjournment of the first hearing,
(b)been given the benefit of eight weeks between the first and second hearing in which to prepare his case;
(c)been provided with two hard copies and an electronic copy of the Court Book;
(d)the benefit of a mid-hearing adjournment in the second hearing in which to consider the Court Book again and make additional submissions;
(e)been thrice granted an opportunity to file an amended application and Affidavit evidence; and
(f)the opportunity to again file a written submission after the second hearing, which he took up (albeit late and in a manner which gave rise to additional confusion).
Grounds of review
By his application to show cause, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Act and raises three grounds of review, which are as follows:
1. That the Second Respondent failed to take into account evidence put forward by the applicant in relation to his protection claims and thereby incurred a jurisdictional error;
2. That the Second Respondent failed to take into account evidence put forward by the applicant in relation to a well-founded fear of persecution if he were to return to India, and thereby incurred a jurisdictional error;
3. That the decision of the Second Respondent was unreasonable, in that sensitivities particular to the applicant was not given sufficient consideration by the Second Respondent.
The three grounds, in essence, only raise two issues and it is convenient to consider grounds 1 and 2 together.
Due to the manner in which this matter has developed, and because there remains no solicitor on the record for the applicant, out of an abundance of caution the Court will consider:
(a)the grounds of review contained in the originating application in their terms;
(b)the matters raised by the applicant at the second hearing after he had been given the mid-hearing adjournment to further consider the Court Book; and
(c)the applicant’s written submission which (unlike the second document referred to at [69(b)] above) do not seek to stray beyond the pleaded grounds and, in fact, overlap with an issue raised by the applicant at hearing.
In relation to the matters raised by the applicant at hearing based on the Court Book, the applicant first drew the Court’s attention to [70] of the Tribunal’s decision (CB 590) where the Tribunal records the applicant as having told it that he had no religion, and would not have any religion on return to India. The applicant told the Court that because his protection claims were based on his religion, that when he told the Tribunal he had no religion, his “mind was not properly working”. The applicant also told the Court that it could “be harmful and dangerous” for him if he were to return to India in circumstances where he did not have any religion, because he might be harmed as a person who was irreligious, however that may be described. It is this claim which has been picked up by the applicant’s written submission as being a basis for alleged error.
The other matter the applicant raised related to an inconsistency in evidence given to the Tribunal in relation to his paternal grandparents whom he initially said were driven from their village by reason of his refusal to enter into an arranged marriage, but later said that they each died in the village (his grandmother before his departure to Australia, and his grandfather after he arrived in Australia) (CB 591 at [78] to [79]). The applicant contends that these things were not inconsistent.
Grounds 1 and 2
Grounds 1 and 2 allege that the Tribunal failed to consider the applicant’s evidence, as advanced by him in support of his protection claims, and thereby erred. It is appropriate and convenient to deal with those grounds together.
In response to grounds 1 and 2, the first respondent said that the applicant’s claims were thoroughly set out by the Tribunal, including his own written claims (CB 568 to 569 at [26]) and claims which were made on his behalf by his sister (CB 569 to 573 at [27]). The first respondent says that, having set out those claims, the Tribunal summarised the applicant’s oral evidence both in relation to the claim to fear harm on the basis of his conversion to Christianity as well as his mental health issues. The Tribunal also summarised documents which were provided for the applicant after the hearing, which included written submissions from his migration agent (CB 578 at [52]) and an array of documents, which can be described as country information, together with an additional statement made by the same sister who had given evidence to the Tribunal (CB 575 to 579 at [46] to [56]).
When asked to address grounds 1 and 2, the applicant said that the Tribunal did not “look into the whole thing”. The applicant said that whatever he claimed as being the basis for his protection visa was not accepted and that “the Tribunal thinks that I am making it up, and I do not have any mental illness.” The applicant said that whatever is in the grounds of review was written by his sister.
In relation to the assertions that the Tribunal found that he was “making this up” and that he didn’t “have any mental illness or problem”, I observed to the applicant at the second hearing, that while the Tribunal did have considerable credibility concerns, he should not understand that decision to deny the fact that he had mental health issues. Rather, the Tribunal accepted that this was the case, and described them as being not insignificant. Further, I explained to the applicant that notwithstanding the fact that the Tribunal ultimately did not find a legal basis upon which those matters would give rise to protection obligations under either ss 36(2)(a) or (aa), it did accept that he had mental health issues, and that he should understand that the Tribunal had accepted this claim. I asked the applicant whether his real complaint was simply that the Tribunal had not accepted his claims. He said “yes”.
The Tribunal expressly said that it had taken into account all of the material provided by, and for, the applicant (CB 579 at [57]). After the Tribunal summarised the evidence, it turned to a consideration of that evidence in respect of the applicant’s protection claims. The Tribunal enumerated six areas in respect of which it had credibility concerns (CB 589 to 592 at [64] to [87]) (see [23] above) and that some of those concerns carried more weight than others. Taken cumulatively, the Tribunal found that they significantly undermined the applicant’s claims to fear harm by reason of his conversion to Christianity or by reason of his not having entered into an arranged marriage. At that juncture, the Tribunal was dealing with the expressly raised protection claims. However, ultimately in relation to the claims based on religion, and the applicant having failed to proceed with the marriage his parents had arranged for him in India, the Tribunal was not satisfied that the applicant faced a real chance of serious harm or that he will be significantly harmed on his return to India, invoking both the language of ss 36(2)(a) and (aa) (CB 592 at [93]).
Next, the Tribunal considered the applicant’s claims that he would face economic difficulties and that he would not be safe in India. It found that such difficulties would not enliven Australia’s protection obligations under s 36(2) of the Act (CB 592 to 593 at [94] to [95]).
In terms of the challenges the applicant would face by reason of his mental health issues, the Tribunal described the issues as being “not insignificant” (at [96]). However, the Tribunal was not satisfied that the inferiority of mental health services in India as compared to Australia, and other hurdles which might be faced by the applicant in relation to his need for support services for his mental health and addiction issues, would satisfy either the refugee or complementary protection criteria. In so finding, the Tribunal also accepted that the applicant had demonstrated “suicidal ideation” (CB 593 at [102]), but was not satisfied that such conduct met the protection criteria in the Act (CB 594 at [103]).
For these reasons, the Tribunal concluded that the applicant was not a person in respect of whom protection obligations were owed under s 36 of the Act (CB 594 at [106] to [107]).
I accept the submissions of the first respondent in relation to these grounds. There are no aspects of the applicant’s evidence that the Tribunal failed to consider. There is a difference between the Tribunal failing to consider evidence and failing to find it persuasive. Further, the fact that the Tribunal came to conclusions other than those for which the applicant contended (or hoped) is not indicative that the Tribunal failed to consider evidence. It is understandable that the applicant is unhappy with the outcome of the Tribunal’s decision, but this does not give rise to a jurisdictional error, nor does it demonstrate a failing on the Tribunal’s part to have considered his claims or the evidence advanced in support of them. Accordingly, grounds 1 and 2 (as addressed by the applicant) are not made out.
Ground 3
Ground 3 alleges unreasonableness on the part of the Tribunal, said to be constituted by it having not given sufficient consideration to the sensitivities which are particular to the applicant.
In relation to ground 3, the applicant said that he did not understand this (or any) ground. The applicant said on the morning of the second hearing he had not wanted to come to Court, because he did not have a lawyer. The applicant then said that whatever the documents the Court had before it, the decision could be made based on those.
The first respondent (in written submissions) construed this ground as contending less that the Tribunal failed to have regard to his particular circumstances, and more that it failed to place weight (or what the applicant considers to be sufficient weight) on them, in reaching the conclusions that it did.
The degree of weight to be given to evidence is a factual question for the decision-maker alone: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
As already outlined above, there are no aspects of the applicant’s personal circumstances or the sensitivities which surround his family or mental health situation that the Tribunal failed to take into account when deciding whether or not he was owed protection obligations. For these reasons, ground 3 must also fail.
Additional grounds
Raised at hearing
Dealing with the second of these additional issues first, I agree with the submission of the first respondent that, in relation to the inconsistencies pertaining to the applicant’s paternal grandparents (CB 591 at [78] to [79]), the findings of the Tribunal on this issue were open to it.
Paragraph [79] of the Tribunal’s decision, is as follows:
This is inconsistent with evidence given by the applicant in the interview with the delegate that his paternal grandparents were driven from the village as a result of the issues resulting from the arranged marriage not going ahead. The applicant did not explain this inconsistency in the hearing other than to maintain that his paternal grandparents did not leave the village.
In essence, one of the issues that the Tribunal found to be problematic in relation to the applicant’s credibility was a claim that the applicant’s paternal grandparents had lived in the same village as his parents, that his grandmother had died prior to his coming to Australia, and his paternal grandfather had died in the village after the applicant left for Australia.
This was said by the Tribunal at [79] to be inconsistent with the applicant’s evidence as given to the delegate, that his paternal grandparents had been driven from their village as a result of issues resulting from the arranged marriage not going ahead. The Tribunal records that the applicant failed to explain this inconsistency at the hearing, other than to maintain that his grandparents did not leave the village. The only submission made by the applicant at the second hearing in relation to [79] of the Tribunal’s decision was to insist that this was not inconsistent. Before the Court the applicant was unable to identify why it is that this would give rise to a jurisdictional error, and I can see no such basis. The applicant’s assertion to the Court that this was not an inconsistency amounts to no more than a challenge to the Tribunal’s factual findings and an attempt to have the Court engage in impermissible merits review.
The second issue raised at hearing, and which was advanced by the applicant’s written submissions, can be summarised as follows. The applicant says that one of the bases upon which he claimed to fear persecution was his apostasy, being the abandonment of his Sikh faith. The claim was made in the visa application and noted by the delegate. The applicant said he feared serious harm from the Khap Panchayat. The Tribunal was not satisfied that the applicant had a well-founded fear on account of his positive religious identity as a Christian (CB 590 at [70]) because the applicant would not practice a religion on return to India. Paragraph [70] of the Tribunal’s decision says the following:
In the hearing, the applicant indicated that he currently has no religion and would have no religion on return to India. The applicant maintained in the hearing, however, that he would face requisite harm on return to India as a result of his religion. However, given that the applicant would have no religion on returning to India, the applicant was not able to cogently explain to the Tribunal why he would face requisite harm on this basis.
This ground, because it was also addressed in written submissions, will be addressed below.
Raised in written submissions
By the written submissions filed for the applicant, it is said that while the Tribunal considered the absence of religious practice as being a factor which would protect the applicant on return, in fact it was a danger to him because there were two separate integers of his religious conversion claim, namely the abandonment of his Sikh faith and the subsequent adoption of Christianity as a new faith. The applicant says the Tribunal considered only the second integer of that claim.
The applicant relies on The Refugee Guidelines which identify abandonment of religion as a basis of harm where the person is considered by their persecutors to be someone who ought to be practising their religion, but is not. The applicant says that by failing to consider the applicant’s fear of persecution for apostasy, the Tribunal erred because it failed to consider an integer of the applicant’s claim to fear persecution.
I am satisfied that this alleged error, aside from intersecting with an issue raised by the applicant at the second hearing, can be taken as sufficiently coming within the ambit of grounds 1 and 2 of the originating application such that leave is not required to raise it.
The first respondent says that the contention that the Tribunal failed to consider a claim of apostasy, despite having considered the applicant’s claim to fear persecution on account of his conversion from the Sikh religion to Christianity, is misconceived. In essence, the first respondent says that, fairly construed, any claim to have abandoned his Sikhism must be understood as being for abandoning it for another religion, not simply abandoning it per se. The first respondent relies upon the applicant’s claims as submitted with the visa application (CB 57 at [8] to [17]) and his evidence given to the delegate at interview on 17 December 2020 (as summarised by the delegate in their decision (CB 311 to 312)).
Next the first respondent says that the manner in which the applicant’s claims were developed at the Tribunal stage does not support an allegation that there was a separate claim of apostasy squarely raised for consideration. The salient material (including from the applicant’s sister and his (then) solicitor) included:
(a)submissions made by his sister on his behalf to the Tribunal that the applicant’s decision to convert to Christianity and not to marry the person to whom he was arranged to be married in India as reasons why he may be threatened on his return to India (CB 459); and
(b)further submissions made by his solicitor that:
(i)he would be harmed in India “due to his changing faith from Sikhism to Christianity and his life is at risk due to his conversion” and “fears he will be persecuted for his past affiliations with Christianity” (CB 483); and
(ii)“he will be systematically and discriminately persecuted by [the Khap Panchayat], to take revenge for changing his faith” and “as a convert to Christianity, he is supposed to have betrayed his faith in Sikhism, and deserves to be punished by death” (CB 483);
The first respondent says that when regard is had to the applicant’s evidence (both before the delegate and the Tribunal) in its entirety, only one claim emerges. Namely, a fear of harm on the basis of the applicant’s conversion to Christianity.
Lastly, the first respondent says that, even if the claim arose squarely on the material before the Tribunal, it was considered. That is because at [72], [73] to [80] and [87] to [91], the Tribunal considered (and made findings in relation to) the applicant’s claims to fear harm by reason of his conversion to Christianity and his not having entered into an arranged marriage in India, and each claim was rejected. In particular, at [90] the Tribunal did not accept:
the extent of the claimed consequences to both the applicant and his family as a result of not entering into th[e] [arranged] marriage
including the claimed imposition by the Khap Panchayat of a financial penalty on the applicant’s family (CB 592 [91]). The first respondent says that because any claim of apostasy was not based on facts that differed from those that were said to underpin the claim to fear harm on the basis of the applicant’s conversion to Christianity, the rejection by the Tribunal of the latter necessarily foreclosed the former. The first respondent says that the instant case is one where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.
Consideration
Despite some fleeting mentions of the applicant’s “abandonment” of Sikhism, there was not a separate integer of his religious claims which arose for consideration by the Tribunal such that it erred by failing to consider it.
The material before the Court, including that referred to above by the first respondent demonstrates that, at its highest, the applicant’s Sikhism was discussed as having been abandoned but was still linked with his pursuit of Christianity. In the written submission made to the Tribunal, the following (in addition to the matters set out above at [104(b)]), was said:
Additionally, Mr [AYT22] says that he will face religious extremism, where he will be confronted with issues of his faith relating to his wilful abandonment of Sikhism, and the choice of Christianity.
Further, country information before the delegate in relation to the Khap Panchayat, was that they (CB 314 and footnote 10):
…are prevalent in the applicant’s home state…and are male-only informal social systems which pass decisions and judgements on marriage, based on tradition.
In my view the applicant’s claim to fear harm from that group could only have been understood as being one to fear harm by reason of having entered into an interfaith marriage (which was how it was considered by the delegate and the Tribunal). The material before the Tribunal did not indicate that the Khap Panchayat were a group concerned with the applicant’s religious status or practice generally, but only with the aspects of the applicant’s conduct which saw him reject an arranged marriage and his subsequent marriage to a Christian woman.
Next, the finding at [70] which this ground/allegation seeks to impugn arose specifically in response to the applicant’s claim at hearing that he “currently” has no religion. The material before the delegate and the Tribunal included a psychologist report in which the applicant self-reported the following (CB 172 at [13]):
13. Regarding his sense of identity, he is a practising Seik [sic]. Since his incarceration he reported that he is no longer religious.
Notwithstanding that the material before the Tribunal could have led it to conclude that any hiatus in the applicant’s Sikhism was in fact temporary and perhaps only associated with his detention and that he only self-described as not “currently” having a religion, a full and contextual reading of the Tribunal’s decision at [69] to [72] demonstrates that the Tribunal considered the claim as it was put, noting that it was not cogently explained.
The applicant’s claim to have abandoned his Sikhism was inextricably linked to his claim to have converted to Christianity in order to marry a Christian woman. As such, in the present case it did not arise as a separate integer such that a claim of apostasy needed to be considered in that regard. Any such claim was subsumed within the findings which pertained to the applicant’s conversion to Christianity. The applicant’s claimed fear of harm at the hands of the Khap Panchayat needed to be understood through the prism that it is a group concerned with traditional marriage and that, by proceeding to enter into a marriage with a woman who was a Christian, the applicant shunned an arranged marriage which was the cause of his conflict with the Khap Panchayat.
To the extent that the applicant could be seen to be claiming to be apostate in the sense that he did not “currently” practice any religion and that he expressly told the Tribunal that on return to India he would not, then aside from the fact there was material before the Tribunal to indicate that the applicant identified as a practising Sikh[6] (which also seems to undermine the claim now made by the applicant’s written submissions that in order to have converted to Christianity he forever abandoned his Sikh faith) the Tribunal took the applicant at his word and considered as best it could on the limited explanation given by the applicant, whether and how this could give rise to the requisite level of harm on return to India.
[6] CB 172 at [13]
While the applicant’s written submissions prepared for him by Counsel after the final hearing in this matter have sought valiantly to advance an error for the applicant, the construct upon which that error turns is not available based on the manner in which the applicant’s claims were advanced up to the Tribunal stage of the proceedings. In terms of how any claim to no longer be religious fell for consideration, the Tribunal dealt with it at [69] to [72] and the findings that it made in doing so were open on the material before it. There was no integer of the applicant’s claims that the Tribunal failed to consider.
Lastly, if by the submission the applicant made about [70] of the Tribunal’s reasons at the second hearing was that his “mind was not working properly” when he told the Tribunal that he no longer had any religion, such that he might be taken as asserting the Tribunal did not give him a meaningful hearing opportunity within the meaning of s 425 of the Act, then this is also not made out. As will be seen from [16] of the Tribunal’s decision, the Tribunal turned its mind to whether or not the applicant had been given a meaningful opportunity to provide evidence and arguments to it, and was so satisfied.
Further, specifically in relation to whether or not the applicant’s mental health issues may have impacted on the quality of the Tribunal’s hearing opportunity, the Tribunal gave specific consideration to this at [62] to [63]. Accordingly, I am not satisfied that there is any jurisdictional error present by virtue of [70] of the Tribunal’s decision, as submitted by the applicant, in the sense identified in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, or at all.
Accordingly, I am satisfied that in relation to the grounds of review included in the originating application, the additional allegations made by the applicant at the second hearing and the ground of review as advanced by the applicant’s written submissions prepared for him by Counsel after the second hearing, none of them gives rise to a jurisdictional error on the part of the Tribunal. In the absence of jurisdictional error, the decision of the Tribunal is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 31 March 2023
1
7
0