BKB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 292

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BKB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 292

File number(s):	SYG 794 of 2020
Judgment of:	JUDGE DRIVER
Date of judgment:	2 December 2021
Catchwords:	MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – adverse information put to principal applicant at hearing – time to respond sought and refused – whether the Tribunal failed to comply with s 424AA of the Migration Act 1958 (Cth) or dealt reasonably with the request considered – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss.36, 420, 424A, 424AA, 425, 427
Cases cited:	BVE16 v Minister for Immigration and Border Protection [2018] FCA 922 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Plaintiff M61/2010E v Commonwealth [2010] HCA 41 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZBYR vMinister for Immigration and Citizenship (2007) 235 ALR 609 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90
Division:	Division 2 General Federal Law
Number of paragraphs:	65
Date of hearing:	5 November 2021
Place:	Sydney
Counsel for the Applicants:	Mr O Jones
Solicitors for the Applicants:	Turner Coulson Immigration Lawyers
Counsel for the Respondents:	Mr T Reilly
Solicitors for the Respondents:	Minter Ellison

ORDERS

SYG794 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BKB20

First Applicant

BKC20
Second Applicant

BKD20
Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	2 DECEMBER 2021

THE COURT ORDERS THAT:

1.The further amended application filed on 8 November 2021 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 DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 March 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.  The principal applicant is the applicant father (the applicant).  The second and third applicants are respectively his wife and daughter, who claimed as members of his family group.

2. The following statement of background facts is derived from initial submissions filed on behalf of the Minister on 1 October 2021.

3. The applicants are citizens of India.

4. The applicant and his wife arrived in Australia on 10 April 2009 as the holders of student (Class TU) (subclass 572) visas. The third applicant was born in Australia in 2014.

5. On 28 June 2013, the applicants lodged an application for subclass 457 visas, which were granted on 18 October 2013. On 8 December 2014, the subclass 457 visas were cancelled.

6. The applicants sought review before the Tribunal, which affirmed the decision to cancel the visas.

7. On 21 March 2016, the applicants’ application for judicial review of that decision before this Court was dismissed.

8. On 1 June 2016, the applicants applied for protection (Class XA) (subclass 866) visas (protection visas).[1] As noted above, the second and third applicants were included on that application as members of the family unit and made no claims of their own.

   [1] Court Book (CB) 22–118

9. On 24 January 2017, the delegate refused to grant the applicant a protection visa, finding there was not a real chance the applicant would face serious or significant harm.[2]

   [2] CB 148–163

10. The applicant sought review of the delegate's decision before the Tribunal by application dated 16 February 2017.[3]

    [3] CB 164–166

11. The applicants appeared at a hearing before the Tribunal with the assistance of a Punjabi interpreter on 26 February 2020.[4]

    [4] CB 221–224

12. The Tribunal made its decision on 3 March 2020, affirming the delegate’s decision not to grant the applicant a protection visa.[5]

    [5] CB 235–253

    Applicant’s claims

13. The applicant claimed to fear harm on account of his political affiliation. He recounted that his father had always supported the Shromini Akali Dal party and that he and his brothers assisted the 2007 and 2012 election campaigns. While campaigning in 2007, the applicant's father was hit with a sword and the applicant and his brothers were beaten. Further, the applicant was well regarded within the youth wing of the Akali Dal and was arrested during a rally. He was beaten for three days and then released on payment of a fine or a bribe. The Akali Dal came into power but the applicant continued to be attacked and beaten, so his family sent him to Australia to live with his wife.

14. The applicant returned to India in November 2012 for a wedding. During his time there, he campaigned for the municipal elections. He was attacked by unknown people and beaten.

    Tribunal decision

15. The Tribunal summarised the applicant’s claims set out in his application and the delegate’s key findings at [7]–[10]. The Tribunal also summarised the applicant’s oral evidence at the hearing at [11]–[42].

16. The Tribunal rejected the applicant's claims and found at [56] that he did not have a well-founded fear of persecution in India, nor was there a real risk that he would suffer significant harm.

17. The Tribunal noted at [57] that there were significant inconsistencies in the narrative between the applicant's protection claims in his application, the delegate's interview, the applicant's wife's evidence at the Tribunal hearing and the applicant's own evidence at the hearing. In particular, the applicant provided inconsistent evidence about when and why he was arrested and how he was released at [58]–[60], his activity with Akali Dal at [61]–[63], the alleged assault at [64]–[65] and the narrative of events that occurred in 2012 at [66]–[68]. The Tribunal also found aspects of the applicant's wife's evidence to be implausible, and identified inconsistencies between this evidence and the applicant's evidence and claims at [69]–[71].

18. The Tribunal found at [72]-[73] that the applicant and his wife's claim that the tensions they experienced in 2012 were due to the municipal elections was implausible, noting that country information stated that the municipal elections were held in June 2012, not November.

19. The Tribunal had regard at [74] to the applicant's explanation that he had a poor memory and did not memorise the dates. However, it found there was no medical evidence to support the applicant's claimed poor memory. Further, the issue was not inconsistency with the dates, but the significant inconsistencies in the narrative.

20. The Tribunal also placed weight at [75]-[81] on the significant delay in applying for the protection visa, and found that, if his claims were true, the applicant would have raised them at an earlier point, such as in the context of whether there was any reason why the subclass 457 visa should not be cancelled.

21. The Tribunal did not accept at [82] that if the applicant's claims were genuine, or that the applicant had a well-founded fear of persecution, or that there was a real risk that he would face significant harm in India, he would not have raised these claims at the time the Tribunal was considering whether to cancel the subclass 457 visa. The Tribunal found at [83]-[87] that even if it were to accept the veracity of the events, the applicant could relocate to another area of India.

22. For those reasons, the Tribunal at [88] rejected the applicant's claims and was not satisfied that he met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). For the same reasons, the Tribunal found that the applicant failed to satisfy the complementary protection criterion under s 36(2)(aa) of the Migration Act.

    THE CURRENT PROCEEDINGS

23. These proceedings began with a show cause application filed on 31 March 2020. At the trial of this matter on 5 November 2021, I gave the applicants leave to rely upon an amended application. Following oral argument at the trial, counsel for the applicants sought the opportunity to file and serve a further amended application to deal with the question of whether the applicant should have been given more time to deal with issues raised at the Tribunal hearing in the event that the Court finds that s 424A of the Migration Act does not apply to the relevant information. I gave that leave.

24. The further amended application filed on 8 November 2021 contains the following grounds:

    1.The Administrative Appeals Tribunal failed to comply with s 424AA (and therefore s 424A) of the Migration Act 1958 (Cth) by reason of:

    a.its failure to advise the applicant that he may seek additional time to comment on or respond to information put to him under s 424AA(1)(a) as required by s 424AA(1)(b)(iii); and/or

    b.its failure to give active intellectual consideration as to whether to adjourn following a request pursuant to s 424AA(1)(b)(iv); and/or

    c.its failure to consider whether the applicant reasonably needed additional time to comment on or respond to the information; and/or

    d.its failure to determine whether to grant an adjournment in a legally reasonable way.

    Particulars

    i.The Tribunal put information to the Applicant that the Punjab municipal elections had occurred in June 2012, but that the Applicant only arrived in India in November 2012.

    ii.The Tribunal put information to the Applicant that the department had cancelled his wife’s visa on 8 December 2014 on the basis that the position was not genuine, and that no application for a protection visa was made at that time.

    iii.The Tribunal put information to the Applicant that the Tribunal had, in its decision of 16 April 2015, cancelled the Applicant’s wife’s visa and it had noted that no claims had been made that the Applicant would face persecution or risk of harm in returning to India. The Tribunal failed to advise the applicant that he may seek additional time to comment on or respond to this information.

    iv.Following evidence given to the Tribunal by the Applicant’s wife at the hearing, the Tribunal put further information to the Applicant in relation to supposed inconsistencies between the Applicant’s description of events and that of his wife.

    v.The Applicant requested more time to respond to or comment on the information set out above but the Tribunal failed to give active intellectual consideration to those requests and/or did not identify or apply the test in s 424AA(1)(b)(iv) and/or failed to give an evident or intelligible justification for rejecting the requests.

    2.The Tribunal failed to give active and intellectual consideration to the Applicant's  request for an adjournment and/or acted in a legally unreasonable way in considering that request. This constituted jurisdictional error.

    Particulars

    i.        Particular (v) to ground 1 above is repeated.

25. In addition to the court book filed on 9 July 2020, I have as evidence the affidavit of  Renee Jane Quinn made on 20 October 2021, to which is annexed a transcript of the hearing conducted by the Tribunal on 26 February 2020. 

26. Both the applicants and the Minister filed pre hearing submissions and made oral submissions at the trial.  I have been assisted by those submissions.

    CONSIDERATION

    Applicants’ contentions

    Relevant statutory framework

27. Section 424A of the Migration Act provides as follows:

    Information and invitation given in writing by Tribunal

    (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).

28. As noted above, the Tribunal decided to proceed under the procedure contemplated by s 424A(2A) of the Migration Act. Section 424AA provides as follows:

    Information and invitation given orally by Tribunal while applicant appearing

    (1)If an applicant is appearing before the Tribunal because of an invitation under section 425:

    (a)the Tribunal may orally give to the applicant 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)       if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2)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).

29. A failure to comply with s 424AA means that the exception in s 424A(2A) has not been engaged. A failure to comply with s 424A constitutes jurisdictional error and invalidates the Tribunal’s decision.[6]

    [6] SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [8] per Perram, Jagot and Griffiths JJ, citing SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77], [173] and [208]

30. A critical component of the requirements in s 424AA in this case is subsection (1)(b)(iv). A request by an applicant for more time, in response to information presented by the Tribunal, triggers the Tribunal’s obligation to adjourn if it considers that the applicant reasonably needs additional time to comment or respond to the information. A determination by the Tribunal as to whether to adjourn must be made in a legally reasonable way.[7] This means that the decision as to whether or not to adjourn must have an evident or intelligible justification.[8] A refusal to adjourn may also constitute procedural unfairness.[9]

    [7] see eg Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [22] per French CJ; [63] per Hayne, Kiefel and Bell JJ; [101] per Gageler J

    [8] Li at [76] per Hayne, Kiefel and Bell JJ

    [9] Li at [22] per French CJ

31. In Li it was held that a statement by the Tribunal that it considered that the applicant had been provided with enough time already, and that it was not prepared to delay further,[10] was not an adequate justification for refusing an adjournment, and was legally unreasonable.[11]

    [10] see [40] per Hayne, Kiefel and Bell JJ

    [11] at [31] per French CJ; [85] per Hayne, Kiefel and Bell JJ

32. Similarly in Minister for Immigration and Border Protection v Singh,[12] the Full Federal Court (Allsop CJ, Robertson and Mortimer JJ) held that the Tribunal had failed to give active intellectual consideration to a request for an adjournment, and to provide an objective or intelligible justification for its refusal to adjourn the proceedings. In that case, the Tribunal had determined that an adjournment was not appropriate because the applicant had made his visa application two years earlier and it considered that he had received several opportunities to sit the English language test required for his visa.[13] This was held at [66] and [76] to be legally unreasonable.

    [12] (2014) 231 FCR 437

    [13] [19], [29]

33. The applicants’ position, in short, is that the Tribunal failed to comply with ss 424A and 424AA of the Migration Act, with the result that its decision was infected by jurisdictional error. In particular, the Tribunal failed to give proper consideration to the applicant’s requests for more time to consider the information that was put to him, or to provide an evident or intelligible justification for refusing to afford the applicant more time.

34. In the course of oral submissions the applicants developed the proposition that even if s 424A and s 424AA do not apply to the information in issue in these proceedings, it was nevertheless unreasonable for the Tribunal to fail to grant additional time as sought by the applicant in the context of ss 420, 425 and 427 of the Migration Act.

35. The Tribunal purported to provide information to the applicant under s 424AA of the Migration Act on at least four occasions:

    (a)the Tribunal put information to the applicant that the Punjab municipal elections had occurred in June 2012, but that the applicant only arrived in India in November 2012.[14]  This was said to undermine the applicant’s credibility because he had claimed that he had suffered violence in the lead up to those elections;

    (b)the Tribunal put information to the applicant that the Minister’s Department had cancelled his wife’s subclass 457 visa on 8 December 2014 on the basis that the position associated with the nomination was not genuine, and that no application for a protection visa was made at that time.[15] This was said to indicate that the applicant’s claims were not genuine;

    (c)the Tribunal put information to the applicant that the Tribunal had, in its decision of 16 April 2015, confirmed the cancellation of the applicant’s wife’s subclass 457 visa and it had noted that no claims had been made that the applicant would face persecution or risk of harm in returning to India.[16] This was said to indicate that the applicant’s claims were not genuine;

    (d)following evidence given to the Tribunal by the applicant’s wife at the hearing, the Tribunal put further information to the applicant pursuant to s 424AA of the Migration Act in relation to supposed inconsistencies between the applicant’s description of events and that of his wife.[17] Again, the inconsistencies were said to indicate that the applicant’s claims were not genuine.

    [14] Q123, Transcript, pages 14-15

    [15] Q151, Transcript, page 21

    [16] Q153, Transcript, page 22

    [17] Q246, Transcript, page 34

1. The applicants submit that, in light of the requirements of s 424AA, on each occasion that information was put to the applicant, the Tribunal was obliged to explain to the applicant that he may seek additional time to comment on or respond to the information pursuant to s 424AA(1)(b)(iii) and, if a request was made, to adjourn the review if the Tribunal considered that the applicant reasonably needed additional time to comment on or respond to the information pursuant to s 424AA(1)(b)(iv).

2. First, it is noted that in relation to the information identified above, concerning the Tribunal’s decision of 16 April 2015, the Tribunal is said to have failed to comply with the requirement to explain to the applicant that he may seek additional time to comment on or respond to the information pursuant to s 424AA(1)(b)(iii).[18] As a result, the Tribunal is said to have failed to comply with s 424AA, which constitutes jurisdictional error.

   [18] see Transcript, page 22

3. Secondly, in relation to the other occasions when information was put to the applicant, the Tribunal did indicate that the applicant could request more time to respond. In response, the applicant repeatedly requested more time. For example, he said:

   …I can’t recall the dates. If I’m allowed more time then maybe I can think about it and put the dates accurately.[19]

   Yeah, I’m just requesting if I can be allowed more time so I can just sit and write down exactly the dates….[20]

   I just want to say if we can get some more time please…we are requesting if we can be given some time to respond.[21]

   …We’re just requesting more time if we can mention things properly.[22]

   We are doing it all ourselves, we got no advice or no legal help and we are trying to do whatever we can.[23]

   [19] response to Q123, Transcript, page 15

   [20] response to Q141, Transcript, page 18

   [21] response to Q246, Transcript, page 35

   [22] response to Q247, Transcript, page 35

   [23] response to Q249, Transcript, page 35

4. In light of those requests, the applicants submit that the Tribunal was obliged to give active intellectual consideration to the request for an adjournment, and to adjourn the hearing if it considered that the applicant reasonably needed additional time to comment on or respond to the information that had been put.  The request for more time is said to have required the Tribunal to consider this matter.

5. However, at no point during the hearing did the Tribunal identify the test that it needed to apply under s 424AA(1)(b)(iv) and consider whether an adjournment should be granted pursuant to that test. This is said to have been a constructive failure to comply with the process in s 424AA.

6. Further, the Tribunal dismissed the requests for more time essentially for this reason:

   You’ve had four years in Australia or three and a half years in Australia with this application. I can’t see that you need anymore time to prepare.[24]

   [24] Q249, Transcript, page 35

7. To the extent that this can be said to be a consideration of whether to adjourn under the test in s 424AA(1)(b)(iv) it is said to have been manifestly inadequate and legally unreasonable.

8. The decision of the High Court in Li, and of the Full Federal Court in Singh, make it clear that it is not an evident or intelligible justification for refusing an adjournment for the Tribunal simply to say that the applicant had been provided with enough time and opportunities already.

9. The applicants submit that the Tribunal was required to consider all of the circumstances of the case to determine whether an adjournment was appropriate. This would include when the applicant was first presented with the information, the applicant’s particular circumstances (including the absence of legal representation) and the fact that there was no prejudice to the Tribunal or any other person in the grant of an adjournment.[25]  It would also include the fact that the applicant did not consider that he had received a reasonable opportunity to present his case.[26] One would also expect a process of balancing of the legislative objections set out in ss 424A and 424AA.[27]  The Tribunal did not refer to any circumstances of the case other than the assert that the applicant had had enough time to prepare already. This is said to have constituted jurisdictional error.

   [25] see Li at [10] per French CJ; Singh at [76]

   [26] Li at [79] per Hayne, Kiefel and Bell JJ

   [27] Li at [31] per French CJ

10. Further, and separately, in relation to the first item of information identified above, in relation to the municipal elections, the applicant had said he wanted more time to think about the dates that had been put to him by the Tribunal.

11. The Tribunal responded:

    Well, it doesn’t really matter if you find out what the dates are because what it indicates is what you’re telling me is just not true because I can tell you when the dates are…[28]

    [28] Q124, Transcript, page 15

12. The applicants contend that this, too, was fundamentally inadequate. The Tribunal presented information to the applicant at the hearing in relation to the dates of the municipal elections. The applicants submit that the applicant was entitled to time to consider that information. It is not an answer to such a request for the Tribunal to simply assert that the information in its possession was definitely correct such that no opportunity of this nature should be afforded to the applicant in accordance with s 424AA of the Migration Act.

    Minister’s contentions

13. The suggestion that the Tribunal did not comply with s 424A of the Migration Act is put in four ways. However, only the first and last concern “information” that could arguably fall within s 424A(1).

14. First, the applicant claims the Tribunal did not comply with s 424AA when putting information to him that the municipal elections occurred in Punjab in June 2012, whereas he claimed to have been injured in the lead up to those elections in November 2012. The Tribunal at Q123 of the transcript complies with the elements of s 424AA(1)(b)(i), (ii) and (iii). The applicant claims the Tribunal did not comply with s 424AA(1)(b)(iv), but it is apparent that the Tribunal did not consider the applicant reasonably needed more time to respond to the information from the discussion at Q124-Q126. Given the applicant did not articulate any reason for needing more time apart from an assertion (without medical evidence) of memory problems, there is said to have been no reason for the Tribunal to consider the applicant reasonably needed more time as required by s 424AA(1)(b)(iv).

15. There is said to be no basis for the suggestions in the applicant’s submissions that the Tribunal did not consider the applicant’s request or that the refusal of an adjournment was legally unreasonable. The applicant’s initial response to Q123 was simply “if I’m allowed more time then maybe I can think about it and put the dates accurately”. This did not give any reason to think an adjournment would be likely to be useful. Indeed the applicant states at Q124: “the elections may have happened…”. In the circumstances the Minister submits that there was nothing unreasonable in the Tribunal considering an adjournment would not be useful.[29] As pointed out in Minister for Immigration and Border Protection v SZVFW[30] at [11], the test for legal unreasonableness is “necessarily stringent”. The Minister submits that it has not been met here.

    [29] Q124

    [30] (2018) 264 CLR 541

16. Secondly the applicant claims the Tribunal did not comply with s 424AA in relation to the date of cancellation of the applicant’s wife’s subclass 457 visa.[31] However this is said to have been “neutral” information that did not engage s 424A.[32] Thus whether or not the Tribunal complied with s 424AA in relation to this information is irrelevant.[33] The Minister submits, in any case, that no breach of s 424AA is identified in the applicant’s submissions in relation to this information.

    [31] Q151

    [32] SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [26]; SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [23], [25]

    [33] SZTGV at [53]

17. Thirdly the applicant claims the Tribunal did not comply with s 424AA in relation to the absence of any non-refoulement claims or claims of any problems in India by the applicants when their subclass 457 visa was cancelled.[34] Again, the Minister submits that such an absence of information does not engage s 424A.[35] Thus whether or not the Tribunal complied with s 424AA in relation to this matter is said to be irrelevant.[36] However for completeness, the Minister submits that as the Tribunal had already reminded the applicant at Q151 that he could seek more time in relation to the date of the subclass 457 visa cancellation, this should be taken as understood as also applying to this matter, despite it not being not being expressly repeated by the Tribunal at Q153.

    [34] Q153

    [35] SZBYR vMinister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; SZTGV at [103]

    [36] SZTGV at [53]

18. Finally the applicant claims the Tribunal did not comply with s 424AA in relation to evidence given by his wife at the hearing.[37] While the applicant asked for more time, he did not give any reason for this. There is thus said to be no reason to consider that the Tribunal not considering the applicant reasonably required more time, or not giving the applicant more time was legally unreasonable.

    [37] Q246

19. In oral submissions, counsel for the Minister developed the proposition that s 424A and s 424AA did not apply to any of the information in issue (contrary to the Minister’s initial less firm position). Counsel for the Minister also developed the proposition that even if the Tribunal fell into error, it made a relocation finding which provided an independent basis to sustain the decision.

    Resolution

20. The applicants’ challenge to the Tribunal’s decision concerns four pieces of information raised with the applicant at the Tribunal hearing. The first of these was the date of the municipal elections in June 2012. The second concerned the absence of any claim to non-refoulement at the time the applicant’s wife’s class subclass 457 visa was cancelled by the Minister’s Department. The third concerned the absence of any claim to non-refoulement at the time the Tribunal reviewed that cancellation decision in April 2015. Finally, the fourth piece of information concerned alleged inconsistencies between the applicant’s description of events and that of his wife. At the trial, the complaint about the second of the pieces of information (the absence of any claim of non-refoulement at the time of the Departmental visa cancellation) was not pressed.

21. The main focus of attention at the trial was the first piece of information, namely the date of the municipal elections.  The applicant had claimed to have been harmed while campaigning in those elections during a visit to India.  The information put  at the Tribunal hearing was that the municipal elections were held in June 2012, while the applicant only arrived in November 2012.  The implication was clearly that the applicant could not have participated in those elections and that his claim to have done so (and been injured in the process) was false.

22. In my opinion, this was not information to which s 424A of the Migration Act applied. It was country information which was on its face neutral. Such information does not require disclosure under s 424A.[38] 

    [38] see Plaintiff M61/2010E  v Commonwealth [2010] HCA 41 at [91]

23. Neither did s 424A apply in relation to the third and fourth pieces of information. The third piece of information concerned an absence of information, namely the absence of any claim of a fear of serious harm or risk of significant harm at the time of the Tribunal’s review of the subclass 457 visa cancellation. It is well settled that an absence of information is not “information” for the purposes of s 424A.[39]

    [39] see also the decision of the Full Federal Court in Singh and SZTGV at [53], [103] and [134]; see also SZGIY at [28]-[29]

24. In relation to the fourth piece of information, inconsistencies between evidence given by the applicant and that given by his wife was also, in my view, not “information” for the purposes of s 424A on the basis of well settled authority.[40]

    [40] BVE16 v Minister for Immigration and Border Protection [2018] FCA 922

25. Because s 424A did not apply to the three pieces of information in issue, purportedly put to the applicant at the Tribunal hearing under s 424AA, the Tribunal did not fall into jurisdictional error in failing to provide time for the applicants to respond to the information. It is also well settled that the Tribunal does not fall into error in purporting to apply s 424A (or s 424AA) when the sections do not apply.

26. In the further amended application, the applicants also contend that it was unreasonable for the Tribunal not to grant an extension of time even if s 424A does not apply. They point to s 420 and the obligation to provide a meaningful hearing opportunity under s 425. There is no doubt that the Tribunal has the power to adjourn the Tribunal hearing from time to time under s 427.

27. In my view, the Tribunal’s refusal to grant time to respond to the information was not unreasonable.  The decisions in Li and Singh are readily distinguishable.  In Li there was no intelligible justification for the refusal of more time, which would have permitted the applicant to complete an otherwise incomplete application.  In Singh, there was no active intellectual engagement with the issue.  In the present case, there was no gap in the application which could have been cured by an adjournment.  The applicant could not change the date of the Indian municipal elections and neither could he change the date of his arrival in India.  There was no suggestion at the trial of any factual error made by the Tribunal in respect to either the date of the election or the date of the applicant’s arrival.  Counsel for the applicants suggested that the provision of more time might have enabled the applicant to, in effect, re-craft his claims so that his claim of harm related to post election violence rather than violence leading up to the election.  While that may have been so, it was not unreasonable for the Tribunal to decline to provide time for an applicant to “massage” his claims in the face of glaring credibility concerns. 

28. If I were wrong in the above findings, I would reject the Minister’s contention that the relocation finding made by the Tribunal at [87] provides an independent basis to sustain the decision.  The reference to relocation was no more than an afterthought by the Tribunal in circumstances where it was in no doubt that the applicants did not face a well-founded fear of harm or a real risk of significant harm.  The purported relocation finding was in my view not determinative of the outcome of the review before the Tribunal and there was no meaningful consideration of the issue, because in the Tribunal’s view, there did not need to be.

    CONCLUSION

29. The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

30. I will hear the parties as to costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       2 December 2021