Bas21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1818
•10 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BAS21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1818
File number(s): PEG 78 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 10 August 2021 Catchwords: MIGRATION - Judicial review – Administrative Appeals Tribunal decision – Subclass 866 Protection visa – citizen of Malaysia – allegations re loan sharks – whether failure to put country information to applicant – whether wrong test applied in making decision – whether denial of procedural fairness – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7, Div 4, ss 5, 5AAA, 5H, 5J, 5LA, 36, 422B, 424A, 425, 425A, 426A, 441A, 474, 476 Cases cited: Maroun v Minister for Immigration & Citizenship
[2009] FCA 1284; (2009) 112 ALD 424Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBYR v Minister for Immigration and Citizenship
[2007] HCA 26; (2007) 81 ALJR 1190, (2007) 235 ALR 609; (2007) 96 ALD 1SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1177
Number of paragraphs: 26 Date of hearing: 21 July 2021 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 78 of 2021 BETWEEN: BAS21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS THAT:
1.The originating application filed 21 April 2021 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the Applicant on 21 April 2021 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application is made in respect of a decision of the Administrative Appeals Tribunal handed down 24 March 2021 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively), of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the Applicant a Protection (Class XA subclass 866) visa (“Protection Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at CB 106-124.
BACKGROUND
By way of relevant background prior to the Tribunal Decision the Court notes that:
(a)the Applicant, a citizen of Malaysia, first arrived in Australia on an Electronic Travel Authority visa (“ETA Visa”) on 13 December 2008 and departed on 16 December 2008: CB 49;
(b)the Applicant arrived in Australia for a second time, again on an ETA Visa, on 21 March 2009 and departed on 27 March 2009: CB 49;
(c)on 5 November 2016 the Applicant arrived in Australia for a third time as the holder of an ETA Visa: CB 49;
(d)the Applicant applied for the Protection Visa on 13 January 2017: CB 1-37;
(e)the Applicant’s claims to fear harm were set out in his Protection Visa application at CB 32-34 and can be summarised as follows:
(i)in 2001-2002 he borrowed more than 50,000 Malaysian dollars from a loan shark and was unable to repay that amount. The loan shark hit him several times, poured hot cooking oil on him and threatened to break his legs and hands;
(ii)he did not seek help from the authorities as they would not be able to protect him;
(i)he cannot relocate elsewhere in Malaysia because he had lived in his village for more than 50 years and it was easier to make a living selling vegetables in his small town; and
(ii)it would be difficult for him to relocate as he would not know anyone, and it would take him time to build his client base;
(f)on 9 March 2017 the Delegate’s Decision was to refuse to grant the Applicant the Protection Visa: CB 49-61. The Delegate:
(i)recorded that the Applicant had not attempted to seek assistance from Malaysian authorities;
(ii)recorded that the Applicant had outlined his situation in “minimal detail” with “no supporting evidence”; and
(iii)was not satisfied that the Applicant had established his case, and found that the Applicant would receive adequate protection from the police and judiciary in Malaysia;
(g)on 29 March 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision: CB 62-68;
(h)on 9 November 2020 the Applicant was invited to attend a hearing scheduled for 25 November 2020 (“First Tribunal Hearing”): CB 77-81;
(i)the Applicant attended the First Tribunal Hearing via telephone with the assistance of an interpreter: CB 87-90;
(j)on 19 February 2021 the Applicant was invited to attend a further hearing scheduled for 11 March 2021 (“Second Tribunal Hearing”): CB 91-95;
(k)the Applicant attended the Second Tribunal Hearing in person and was again assisted by an interpreter: CB 101-103; and
(l)on 24 March 2021 the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Protection Visa: CB 106-124.
TRIBUNAL DECISION
In the Tribunal Decision, the Tribunal:
(a)said that at the First Tribunal Hearing it had read to the Applicant the summary of the Applicant's claims contained in the Delegate's Decision (as to which see CB 50 at Part 4), and that the Applicant had confirmed that:
(i)the Delegate’s summary was a fair and accurate summary of the Applicant’s claims;
(ii)that he had no additional claims; and
(iii)there were no changes to the information contained in his Protection Visa application: CB 109 at [19];
(b)
recorded that, despite stating otherwise in his Protection Visa application form,
the Applicant told the Tribunal at the Second Tribunal Hearing that he had been assisted by a Malaysian person when completing the Protection Visa application form when he could not understand the questions, but that he had filled out and signed the form himself: CB 109 at [20];
(c)noted that it had advised the Applicant that he could not assume that any of his claims had been accepted by the Tribunal, even if they had been accepted or not addressed directly by the Delegate: CB 109 at [21];
(d)noted that it had significant concerns about the credibility of the Applicant's claims, observing that:
(i)there were inconsistencies in relation to events which occurred in Malaysia, including the claimed loans; and
(ii)the Applicant struggled to provide meaningful detail, context or corroborative evidence on critical aspects of his claims: CB 114 at [54];
(e)noted that the Applicant's conduct in Australia further contributed to its doubts regarding his credibility, and that it had significant concerns regarding the accuracy and truthfulness of the information he had provided in support of the Protection Visa application: CB 114 at [55];
(f)
noted the Applicant’s evidence that he came to Australia to obtain employment, having already travelled to Australia on a prior occasion with a view to working here, and that
when the Applicant was asked why, if he had come to Australia intending to work,
he had not applied for a work visa, that the Applicant said that at the time he believed he would not get a “work visa”: CB 114 at [59]-[61];
(g)found that the Applicant's evidence that he had previously travelled to Australia on an ETA Visa as a tourist to obtain employment, having already tried on one prior occasion to obtain work here whilst on an ETA Visa as a tourist, cast doubt on his claims to have left Malaysia due to fear of harm from loan sharks or any other person, and recorded that it put to the Applicant that the fact that he came to Australia and worked whilst in Australia as a tourist (on two occasions) might cast doubt on his credibility, and that the Applicant stated that he understood this: CB 114 at [62];
(h)summarised the Applicant’s evidence regarding the events he said led to his fear of returning to Malaysia as “vague and lacking in detail”: CB 115-116 at [63]-[67];
(i)recorded that it had put to the Applicant that:
(i)given he had been able to live and work in Johor Bahru for nine years without being harmed prior to coming to Australia, that this might suggest he was not at risk of harm there; and
(ii)the fact he had been able to travel back to Bahau to visit suggested he was not at risk of harm in that town: CB 116 at [68];
(j)observed that it was concerned that the account of the Applicant's movements and employment in Malaysia in the years prior to coming to Australia were inconsistent with his claim to have suffered and feared harm from loan sharks, or with his claim to be unable to escape loan sharks anywhere in Malaysia: CB 116 at [68];
(k)
found that the Applicant's account of events regarding the claimed loan was vague and implausible, and that it was concerned that he was unable to provide any corroborative evidence of any debts owed, or the threats made before or after he left Malaysia:
CB 116 at [69];
(l)observed that, in any event, no threats had been made against the Applicant for more than 14 years and his family had not experienced any harm, or threats of harm, during that period, and considered that the fact that the loan sharks had not sought repayment from the Applicant’s family, despite their ongoing presence in the Applicant's hometown, cast further doubt on his claims: CB 116 at [69];
(m)did not accept that the Applicant would not report an ongoing threat of permanent damage or death to authorities, and considered that it was implausible and illogical that he would not seek the assistance of authorities merely because he thought they would be unable to assist him: CB 116 at [70];
(n)considered that the fact that the Applicant had been able to afford to travel out of Malaysia for recreation (and not just to Australia), and was able to leave Malaysia and returned voluntarily, cast doubt on the genuineness of his claim to fear harm on return to Malaysia: CB 117 at [73];
(o)
found that the Applicant had omitted significant details from his Protection Visa application, including where he had lived and the work he had done in Malaysia
(including for example having worked in the construction industry for nine years in Johor Bahru, which was not his home town, immediately prior to coming to Australia), and that the information he had provided was misleading: CB 117-118 at [74]-[80];
(p)
accepted, having regard to country information, that predatory lending practices in Malaysia could be associated with violence and crime, but noted that Malaysian police and government authorities had taken, and continued to take, prosecutorial action against predatory lending practices, and that there were organisations who aided individuals and businesses in circumstances such as the Applicant had described:
CB 118 at [81];
(q)considered that the fact that the Applicant had not attempted to avail himself of any support from non-government agencies, and that he had not complained to police, undermined his claim to face serious or significant harm on return to Malaysia: CB 118 at [81];
(r)did not accept that loan sharks would still be looking for the Applicant, noting that in the absence of repayments by the Applicant since 2007, they had not sought to harm his family or to enforce the debt against them, and that that even if a debt was owed to a loan shark, the loan shark had limited interest in enforcing that loan: CB 118 at [82];
(s)recorded the Applicant’s claim at hearing that loan sharks had approached his son in 2019 to ask about his whereabouts, but said that given this claim was only raised after the Tribunal’s questioning regarding the amount of time which had passed since the loan was taken out, and since he had moved from Bahau, the Tribunal was concerned about the credibility of the Applicant's evidence in this regard, and it did not accept that loan sharks were seeking information about his whereabouts from the Applicant's son or anyone else in 2019: CB 118 at [82];
(t)found that the Applicant did not have a well-founded fear of persecution from loan sharks, or any other person, on return to Malaysia: CB 118 at [83];
(u)accepted that the Applicant wished to remain in Australia for economic reasons, but found that there was nothing before it to indicate that he would be denied the opportunity to work or that he would be unable to find work in Malaysia, and further accepted that whilst the Applicant would have to resettle in Malaysia and may have less disposable income available to him, it did not accept that he faced a real chance of suffering persecution involving serious harm for one or more of the reasons in s 5J(1)(a) of the Migration Act: CB 118 at [84]-[85];
(v)acknowledged that the international public health crisis arising from the COVID-19 pandemic was a factor weighing on potential removal decisions for visa applicants in Australia, but found there was no information to support a claim that the COVID-19 pandemic, or the Malaysian government's response to it, gave rise to a well-founded fear of persecution: CB 119 at [86];
(w)observed that there was no evidence that, as a reasonably foreseeable consequence of the Applicant's return to Malaysia, there was a real risk he would suffer serious or significant harm because of the COVID-19 pandemic, and found that whatever measures may be applicable to the population of Malaysia in response to the COVID-19 pandemic did not amount to “systematic or discriminatory conduct” or an intentional act or omission: CB 119 at [87];
(x)for the reasons outlined above, did not accept key aspects of the Applicant’s claims, and found that:
(i)the Applicant did not owe money to a loan shark;
(ii)the Applicant moved from his hometown of Bahau to work in the construction industry in Johor Bahru nine years prior to coming to Australia and seeking protection;
(iii)there was no threat of harm, or instance of harm, from any individual against the Applicant or members of his family;
(iv)the Applicant did not fear harm from loan sharks when he left Malaysia for Australia; and
(v)the Applicant left Malaysia to pursue work opportunities in Australia: CB 119 at [89];
(y)found that the Applicant did not face a real chance of serious harm due to claimed debts owed to loan sharks on return to Malaysia and, in circumstances where he did not
articulate any other basis upon which he would face harm, found that he would not face a real chance of serious harm on return to Malaysia for any reason: CB 119 at [91]-[92];
(z)having considered the Applicant's claims individually and cumulatively, was not satisfied that the Applicant would face a real chance of serious harm if he returned to Malaysia, and therefore found that the Applicant did not satisfy the criteria in s 36(2)(a) of the Migration Act: CB 120 at [94]-[95];
(aa)was not satisfied, in circumstances where the “real risk” test imposes the same standard as the “real chance” test, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm from any person or for any reason: CB 120 at [99], and was therefore not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act: CB 120 at [103]; and
(bb)affirmed the Delegate’s Decision: CB 121 at [105].
JUDICIAL REVIEW APPLICATION
The requirement for jurisdictional error
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may legal unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
To constitute jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon the Applicant to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision,
or determine the Applicant’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
(“Wu Shan Liang”).
Grounds 1 and 2
Grounds 1 and 2 of the Judicial Review Application, unaltered, are as follows:
1.THE ADMINISTRATIVE APPEALS TRIBUNAL FAILED TO COMPLY WITH S424A OF THE MIGRATION ACT 1958.
2.THE TRIBUNAL HAS FAILED TO PUT TO THE APPLICANT FOR COMMENT THE INDEPENDENT COUNTRY INFORMATION ON WHICH IT RELIEDIN MAKING ITS DECISION.
Section 424A of the Migration Act provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
The Applicant (who did not file written submissions) submitted orally at hearing that:
(a)the Tribunal had not confirmed the circumstances in Malaysia;
(b)the Tribunal “just made the decision”;
(c)that “based in law it was not appropriate”; and
(d)it was “not fair for me”.
The Tribunal Decision was relevantly based upon:
(a)country information, which was exempted from s 424A(1) of the Migration Act by s 424A(3)(a) of the Migration Act;
(b)the Applicant’s oral evidence to the Tribunal, which was exempted from s 424A(1) of the Migration Act by s 424A(3)(b) of the Migration Act;
(c)the Applicant’s written evidence to the Department, which was exempted from s 424A(1) of the Migration Act by s 424A(3)(ba) of the Migration Act; and
(d)inconsistencies and deficiencies in the Applicant’s evidence, which did not constitute “information”, “information” for the purposes of s 424A the Migration Act being information constituting a rejection, denial or undermining of the Applicant’s claims: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190, (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [17]-[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
The Tribunal’s obligations under s 424A of the Migration Act were not, on the facts, engaged in circumstances where there was no relevant “information” that it needed to put to the Applicant under s 424A of the Migration Act: SZBYR at [17]-[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
The Tribunal Decision also demonstrates that the Tribunal, despite not being required to do so, discussed relevant country information with the Applicant at the First and Second Tribunal Hearings, including information contained in the most recent Department of Foreign Affairs and Trade Country Information Report: Malaysia dated 13 December 2019 (“2019 DFAT Malaysia Report”): CB 109 at [22]. It also discussed information relating to loan sharks with the Applicant in general terms at the Second Tribunal Hearing: CB 113 at [47], and had regard to country information concerning:
(a)the activities of loan sharks, as outlined in the 2019 DFAT Malaysia Report: CB 113 at [48] and fnn 11-13;
(b)the assistance offered by banks, credit agencies and an NGO to individuals who had been the victims of unscrupulous money lenders: CB 113 at [50]-[51] and fn 15.
Grounds 1 and 2 have therefore not been made out, and accordingly do not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Judicial Review Application, unaltered, is as follows:
3. THE TRIBUNAL APPLIED WRONG TEST IN MAKINT ITS DECISION.
The Tribunal Decision specifically referred to the relevant legislative provisions in respect of the refugee and complementary protection criteria, and in particular ss 5(1), 5AAA, 5H, 5J 5LA and 36 of the Migration Act. It is plain that the Tribunal:
(a)set out and understood the relevant issues: CB 107 at [4];
(b)set out and understood the relevant refugee and complementary protection criteria for the Protection Visa: CB 109-112 at [25]-[44], and understood that it had to make findings of fact as to relevant matters: CB 111 at [37];
(c)understood the importance, in the particular circumstances of this case, of assessing the Applicant’s credibility: CB 114 at [54]-[55]; and
(d)assessed the Applicant’s evidence against the relevant criteria and adopted the language of the relevant provisions in its findings: CB 114-121 at [57]-[105].
There was also no error in the Tribunal relying, as it did at CB 120 at [99], on its anterior findings of fact in disposing of the complementary protection criterion: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ.
Contrary to the allegation in ground 3, the Tribunal was clearly cognisant of the applicable tests, and did not apply a wrong test in what is a comprehensive and thorough Tribunal Decision. Ground 3 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 of the Judicial Review Application, unaltered, is as follows:
4. THE APPLICANT WAS DENIED PRCEDURAL FAIRNESS IN CONNECTION WITH THE MAKING OF THE DECISION
Procedural fairness obligations are imposed on the Tribunal by Pt 7, Div 4 of the Migration Act, and those obligations are taken to be an exhaustive statement of the natural justice hearing rule: Migration Act, s 422B.
On the materials before it the Court observes as follows:
(a)by invitations dated 9 November 2020 and 19 February 2021 (“Invitations”): CB 77 and 91, the Applicant was invited to attend the First and Second Tribunal Hearings;
(b)the Invitations:
(i)gave notice to the Applicant of the day, time and place of each of the First and Second Tribunal Hearings in accordance with s 425A of the Migration Act;
(ii)were sent to the Applicant by email to his nominated email address, being the last address provided to the Tribunal in connection with the review: Migration Act, s 441A(5); and
(iii)contained a statement on the effect of s 426A of the Migration Act,
and thus, pursuant to s 425 of the Migration Act, the Applicant was invited to, and did attend, the First and Second Tribunal Hearings;
(c)the Applicant was on notice from the Delegate’s Decision and the Tribunal’s questioning at the First and Second Tribunal Hearings that the determinative issues on review were the credibility of his claims and whether he satisfied the refugee or complementary protection criteria;
(d)the Applicant was assisted by an interpreter at the First and Second Tribunal Hearings, which had a duration of twenty-five minutes for the First Tribunal Hearing: CB 87-89, and more than one and a half hours for the Second Tribunal Hearing: CB 101-103, and nothing has been suggested to indicate that there was any issue or matter that inhibited the Applicant from partaking and giving evidence and providing arguments in support of the Protection Visa application: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(e)there was no information or material the Tribunal was required to put to the Applicant pursuant to s 424A of the Migration Act and to the extent the Tribunal sought the Applicant to expand upon aspects or comment on what the country information stated the Applicant did so: CB 113 at [47]; and
(f)the Tribunal provided to the Applicant a meaningful opportunity to present his claims and evidence, and the Tribunal confirmed it had “carefully considered the claims of the applicant” when making the Tribunal Decision: CB 113 at [52].
It follows from the above observations that the Court has been unable to identify any denial of the procedural fairness obligations owed by the Tribunal to the Applicant in relation to the First and Second Tribunal Hearings.
Ground 4 has not been made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDER
For the reasons set out above, the Court has concluded that none of the grounds of the Judicial Review Application have been made out. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 August 2021
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