BOG19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 58
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BOG19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 58
File number(s): MLG 1104 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 January 2025 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – whether the Tribunal mislead the applicant – whether the Tribunal conducted the review in accordance with s 425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A Migration Act 1958 (Cth) ss 5AAA, 36, 411, 414, 415, 420, 422B, 424, 424A, 425, 427, 476 Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR(2003) 128 FCR 553; [2003] FCAFC 126
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZUON v Minister for Immigration and Border Protection (No 2) [2019] FCA 348
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submission/s: 7 November 2024 Date of hearing: 7 November 2024 Place: Melbourne Counsel for the Applicant: Mr M. Kenneally Solicitor for the Applicant: WLW Lawyers Counsel for the First Respondent: Ms K. McInnes Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1104 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOG19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application as amended on 18 October 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
The applicant, a citizen of India, first arrived in Australia pursuant to a student visa which ceased on 15 March 2011. On 22 February 2011, the applicant lodged an application for a further student visa which was refused on 6 April 2011. The applicant sought merits review of that refusal decision and also lodged an application for Ministerial intervention when that review was unsuccessful. The application for Ministerial intervention was “not considered”.
On 14 November 2012, the applicant married an Australian woman who he met a short time prior to the marriage. The applicant applied for a partner visa on 8 March 2013. That application was refused on 20 September 2013. The applicant’s wife died prior to the refusal decision on 14 May 2013. The applicant also sought merits review of the refusal of this decision. On 16 October 2014, the Migration Review Tribunal (MRT) affirmed the refusal decision. The applicant again lodged an application for Ministerial Intervention on 21 January 2015. The application was “Not referred”.
On 11 February 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa. The applicant claimed his family did not approve of his marriage and that they had threatened to kill him to restore the family’s honour. A delegate of the first respondent (Minister) refused the application on 16 August 2016. The applicant applied for merits review of this decision with the Administrative Appeals Tribunal on 29 August 2016. The Tribunal affirmed the delegate’s decision on 18 March 2019.
On 15 April 2019, the applicant applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) (application). The Minister opposes the application.
The sole issue arising in relation to this application is whether the applicant was misled by the Tribunal during the review hearing and denied a meaningful opportunity to present evidence from a witness or to make arguments in respect of the weight to be afforded that witness’s statement. For the reasons which follow, the application is dismissed.
BACKGROUND
Visa application
The applicant provided with his visa application a statutory declaration dated 3 January 2016 which set out his reasons for seeking protection as follows:
2. I am claiming persecution on basis of belonging to a Particular Social Group and Religion.
3. I also rely on the Complimentary Protection provisions for assessment of my claims.
Background
…
8. I was born a Hindu, however; I am not a practicing member of my faith.
9. I was born a member of the Brahman – Khatri, Hindu class.
…
My marriage to an Australian citizen
14. I married my former late wife…on 14 November 2012…
15. I lodged an application for a partner visa, which was subsequently refused by the Department of Immigration and affirmed by the Administrative Appeals Tribunal.
16. Our relationship was genuine, however, it was characterized by violence as my wife had a drug addiction.
The death of my wife
17. My wife died as a result of her drug addiction.
My family's opposition to my relationship
18. My family and close relatives staunchly opposed my relationship to an Australian women.
19. They view such relationship as bringing dishonor upon my family and religious class.
20. Both my father and uncle threatened me with physical violence and have continued to threaten me with physical violence despite the passing of my wife.
21. The fact that I was married to a person who was addicted to drugs and who died as a consequence of her addition has brought further shame upon the family.
22. My family do not accept such relationship because it is perceived to have brought disrepute upon our Brahmin class, who are socially highly regarded. A relationship with a person who comes from another culture and who has died as a result of a drug addiction is regarded as having brought enormous ill repute upon the family.
23. The only means by which the family and class honor can be restored is by my killing.
Why I fear returning to India
24. Honor related crimes in India continue to be a wide spread practice. My family are extremely conservative and due to the fact that they are members of a high Hindu class there is an expectation that the class and family honor must be preserved at all expense.
25. Marriage to a person outside our class or culture by a Brahmin member is simply not tolerated.
26. There are hundreds of honor related killings being reported throughout India each year.
27. The Indian police seem powerless or ineffective to deal with honor related crimes, as the rate of such crimes seem to increase each year.
28. Relocation to another part of India would not be a viable nor a practical option, because the laws in India are applied universally with perpetrators of honor related crimes given relatively lenient sentences or escape punishment due to corruption.
29. My family, particularly my uncle is very wealthy and well politically connected. He can use his wealth and influence to track me down and harm me without facing any legal repercussions.
In the course of assessing his visa application, the applicant was invited to an interview with the then named Department of Immigration and Border Protection, which he attended with his migration agent and an interpreter on 5 August 2016. During the interview, he advised his wife had died on 28 June 2013 and he was unable to get a death certificate. He also advised he was not aware his wife was a drug addict before he married her. He told the department his application was lodged in 2016 because he was previously unaware he was able to apply.
Delegate’s Decision
In refusing the visa application, the delegate found the applicant was not a person in respect of whom Australia has protection obligations or a member of the same family unit as a person to whom such obligations are owed as set out in s 36(2) of the Act.
In reaching the conclusion the applicant did not meet the refugee criterion pursuant to s 36(2)(a) of the Act, the delegate accepted the applicant was in a relationship as claimed and had married an Australian who passed away as a result of drug abuse. The delegate also accepted that “honour killings” and sectarian violence do occur in India, particularly in rural areas, including the area in which the applicant was born and raised. Consequently, the delegate accepted the authorities cannot provide protection against persecution to the applicant in his home province. The delegate, however, found that internal relocation was a viable option for the applicant. Further, the delegate was not satisfied that effective protection measures were unavailable to the applicant in all areas of India. This meant the applicant was not a refugee within the meaning of s 5H of the Act.
The delegate found for the same reasons that the applicant did not meet the complementary protection criteria pursuant to s 36(2)(aa) of the Act.
Application for review to the Tribunal
On 29 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision. He nominated a registered migration agent as his representative.
On 24 October 2018, the Tribunal wrote to the applicant (via his representative) inviting him to attend a hearing on 28 November 2018 to give evidence and present arguments relating to the issues arising in his case. The Tribunal also advised the representative that he should provide a written submission setting out all claims made and maintained by the applicant, accompanied by a signed declaration from the applicant that the submission had been read and explained to them and that it accurately and completely presented their claims.
On 16 November 2018, the Tribunal was provided details of the applicant’s new authorised representative. On 21 November 2018, the applicant’s new representative provided a copy of a statutory declaration made by the applicant on 16 November 2018, to the Tribunal, as “new developments [had] arisen since the Departmental interview”. That statement outlined how the applicant’s “physical and mental wellbeing” had “significantly deteriorated” since the passing of his late wife and consequent threats made against him by his family and close relatives in India. He described estrangement from his parents and attempts of a friend, Mr [S], to reconcile him with his family. He outlined Mr [S] informed him “the entire family remains infuriated by [his] actions and that they seek revenge being the only means of restoring the family honor”. He provided reasons why he feared returning to India as follows:
29. I fear for my personal safety as my paternal uncle is a violent man and is capable of carrying out his threat to have me killed once I return to India.
30. My entire family's judgment is completely clouded by their perceived loss of their honor due to my marriage to my late wife. The fact that I have married a Christian who died of a drug overdoses is considered extremely repugnant to their repute.
31. Even my own family now blamed me for the illness and ultimate death of my late father and continues to seek revenge against me.
32. I have been totally excluded from my inheritance. which is significant given my parents wealth.
33. My paternal uncle is also an extremely wealthy man who has over the years developed significant political and social links. Given the level of corruption which pervades every aspect of Indian society, my paternal uncle's network of influence can easily be utilized to track me down anywhere in India.
34. I am unable to rely neither on the protection of the Indian law enforcement agencies nor on Indian legal system to offer me effective protection. Honor related crimes in India are prevalent with the law seemingly remaining ineffective in providing protection to victims of honor related crimes.
35. Corruption within the Indian police force is rife which means that relocation to another part of the country would not be an effective deterrent. My paternal uncle can use his wealth and influence to bribe police officials who can then easily track me down anywhere in India, to exact retribution upon me.
36. I do not seek to remain in Australia for any other reason than for protection. I come. from an extremely wealthy and influential Hindu family. Accordingly, I am neither an economic refugee nor a person who is seeking better lifestyle opportunities in Australia. My family lead a luxurious and wealthy lifestyle in India which would have also bestowed upon me had it not been for my marriage to my late wife.
37. I do not regret my marriage to my late wife, and would have been glad to lose everything that my family could have ever offered me in India just to simply have the opportunity to live a happy and free life with her in Australia. However, the circumstances of her drug addiction ultimately lead to the initial breakdown in our relationship and her ensuing death. Notwithstanding the death of my late wife, my family still shuns me and vow revenge for bringing what they consider grave disrepute upon them all.
A statutory declaration of Mr [S] dated 16 November 2018 was also provided to the Tribunal which described his contact with the applicant’s family on a trip to India in September and October of 2018. He stated:
So during my stay in India I met his family and tried to convince them to accept him and allow him back in the country. But unfortunately they were not willing to listen to me and were very upset with [the applicant] because he went against their wishes and married a Christian girl. So they believe that this has dramatically effected their family reputation and morale of their family in the society. They told me that they are not treated well among their society because of what [the applicant] has did. They seemed very upset with his [the applicant] actions. Also they told me if he comes back to India they will kill him and bring back the lost honour of the family.
On 22 November 2018, the applicant’s new authorised representative sent a completed ‘Response to hearing invitation – MR Division’ form indicating the applicant would be attending the hearing unrepresented, that he required an interpreter for the hearing and did not request the Tribunal to take oral evidence from another person.
On 28 November 2018, the applicant appeared before the Tribunal without representation, and with the assistance of an interpreter in the Hindi language. The hearing record notes that “No Extra Docs” were received. The Tribunal’s Case Note Details of the same date indicates that a harm risk alert had been flagged on the application as the applicant had threatened self-harm during the hearing. The applicant had “stated that the Australian government owes him protection·, and that it would be the government's fault if he killed himself. He also said he would be willing to put this in writing”. The Tribunal consequently adjourned the hearing.
On 29 November 2018, the Tribunal wrote to the applicant (via his representative), advising him that the resumption of the adjourned hearing would take place on 20 December 2018. That letter attached a 'Response to resumption of adjourned hearing notice - MR Division' form and requested that the applicant confirm his attendance at the hearing as soon as possible.
The Tribunal’s case notes record it received contact from the Asylum Seeker Resource Centre (ASRC) on behalf of the applicant. The ASRC asked for the hearing to be postponed to enable the applicant to obtain medical documents he said he had been asked to submit by the Tribunal. They were advised to put the request for an adjournment in writing. There is no record of a written request for adjournment being received by the Tribunal.
On 20 December 2018, the applicant appeared again before the Tribunal, without representation, and with the assistance of an interpreter in the Hindi language. The hearing record records the hearing commenced at 2:07pm and concluded at 2:49pm. It does not record that any documents were received during the course of the hearing, but records that the applicant or representative was to provide information, comments or response in writing by 31 January 2019.
On 30 January 2019, a solicitor from the ASRC emailed the Tribunal advising they had been requested to provide pro-bono legal assistance to the applicant. Additional time was requested for the applicant to provide supporting documentation, noting the applicant was in the process of obtaining medical assistance through the Monash Health Refugee Health and Wellbeing program. A further four weeks was sought to obtain the relevant documents, receive legal advice and provide relevant medical and supporting evidence to the Tribunal. It was requested the Tribunal communicate directly with the applicant.
The Tribunal granted the request, giving the applicant until 25 February 2019 to provide the requested documents. There is no record of any further documents being provided to the Tribunal by the applicant, his representative or the ASRC.
On 18 March 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The applicant was notified of the decision by email (via his representative) on 21 March 2019.
THE TRIBUNAL’S DECISION
The Tribunal’s statement of decision and reasons runs to 59 paragraphs. The Tribunal first set out at [4]-[9] the criteria for protection visas and noted it had regard to departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56.
It set out at [11]-[12] a summary of the applicant’s claim for protection as emerged from his visa application and interview with the Department. The Tribunal then set out at [18]-[40] the evidence received during the course of the hearing. Relevantly, that evidence was to the following effect:
·he grew up in the Punjab region of India with his family until moving to Australia when he was 22 years old;
·he initially studied in Australia. His work rights were removed in 2012;
·he grew up as a Hindu and had a religious upbringing. He has no money so does not go to festivities or religious places but still considers himself a Hindu;
·he met his wife in August 2012 through a mutual friend. He did not recall how his wife and friend knew each other. The applicant married his wife on 14 November 2012 in the office of a marriage celebrant. The ceremony was attended by the couple he lived with, one of his friends and one of his wife’s friends;
·the applicant’s wife had a baby, but the applicant was not sure if the baby was his. She was a drug addict and no one was sure who the parent was;
·no family attended the wedding. The applicant only met his wife’s family once in November or December 2012;
·he initially did not tell his family about the marriage as he wanted to give them a surprise. When he told them, his mother advised they had arranged for him to marry another Hindu in India, with the ring ceremony taking place in 2013. The applicant said his aunt had selected the girl. He did not know who she was or where she was from. He claimed that making such arrangements without the groom’s knowledge was common amongst the upper class of Hindu culture;
·he alleged that when his aunt was told of his marriage in Australia, the applicant’s uncle said if he returned to India he would be killed. He found this out when he called home and his aunt answered the phone. She told him he had badly defamed the family;
·he explained he also told a friend here about the marriage. He also suggested that when his engagement to the Hindu woman became null and void, people would come to know as gossip is very common;
·his family discovered his wife was a drug addict when his friend, Mr [S], returned to India and disclosed his wife had died due to a drug problem. When his friend returned he said the family had terrible anger, that his father had died and that if he came home he would not be spared. His family said the applicant tarnished their image in the community and he would be killed if he returned. His friend met with the applicant’s mother, brother and uncle at his mother’s house;
·the applicant explained his family are wealthy and have contacts. His aunt and uncle live in the same town as his mother. They inherited property from the applicant’s grandparents;
·The applicant explained his uncle would know if he returned to India because he has strong political links through his work as a social worker. He claimed that if he found somewhere to live, he would have to supply identification, and the police would come to know through that identification;
·the applicant explained it had taken four years from the time of his marriage to apply for protection because he was confused. He stated the confusion was due to his wife having friends over to take drugs when he left the house. They would fight about this. This was when they moved to Elwood in 2012 where they lived until June 2013;
·after his wife died he was mentally unwell and sleeping in his car for a number of months;
·the applicant claimed to have been diagnosed with a mental health condition but did not have a letter or anything from a doctor because they wanted money and he did not have any;
·when the Tribunal began to discuss the country information during the first hearing concerning honour killings in India and that there was limited information to support the practice of honour killings involving individual Hindu men, the applicant became extremely agitated and uneasy. It was at this stage the applicant made the threats of self-harm referred to at [16] above. The applicant was provided with the contact details of counselling services and advised to provide evidence of any medical condition relevant to his claim for protection;
·At the subsequent hearing, the applicant described his fear of being tracked if he moved to another area of India as his identification had expired and police would notify his family. He again referred to the influence of his uncle.
The applicant again referred to his health issues during the second hearing. The Tribunal provided him additional time to submit relevant medical evidence for consideration. It was noted there had been no further request for an extension of time or submissions received: at [39]-[40].
The Tribunal observed that a decision maker is not required to make the applicant’s case for them, nor was it required to uncritically accept any and all allegations made by them. It noted that findings of fact required to be made may involve assessments of credibility. The Tribunal noted it was aware of the need for and importance of being sensitive to the difficulties asylum seekers often face, and that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims at [42]-[44].
Upon consideration of the applicant’s claims, the Tribunal accepted that the applicant married an Australian woman on 14 November 2012, who was not of the Hindu faith, and who passed away as a result of a drug overdose: at [45]-[46]. However, the Tribunal noted the applicant was unable to give evidence of the drugs his wife was using while they were together or at the time of her death. He also did not claim to be the father of his wife’s child or have any caring responsibilities of her child.
The Tribunal expressed the following concerns with the applicant’s claims and the evidence of Mr [S] (references omitted):
47. As evidence of the threats to his personal safety by his family, the applicant submitted a statutory declaration from his friend ... I have given little weight to the declaration for the following reasons. The applicant gave evidence at the first hearing that he identifies as Hindu and doesn't attend religious festivities or places. This contradicts [Mr [S]’s] evidence that he met the applicant at a Sikh Temple which they both regularly attend. The statutory declaration lacks detail; it does not set out an address for the meeting or list who attended. It is not specified who stated that the applicant would be killed if he returned. No confirmation of [Mr [S]’s] travel was provided.
48. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. The applicant applied for a protection visa on 11 February 2016, more than three years after he was married and almost three years after his wife passed away. At the time he applied, he had limited options to remain in Australia. This is not indicative of someone who fears for their physical safety. When questioned about the delay in lodging a protection application by the Department, the applicant said he didn't know he could apply. When questioned about the delay during the hearing, the applicant said he was confused as a result of his wife's drug use. I do not find these to be convincing justifications for the delay, particularly given the period of time that elapsed after [his wife’s] death. I note that no medical evidence was submitted to provide details as to how the applicant's mental health may have affected his behaviour at the relevant time.
49. When I asked the applicant how his family knew that his wife was a drug addict, he gave evidence that [Mr [S]] had disclosed the information to them when he visited in September 2018. However, the applicant claimed that his wife's death from drugs had brought further shame on his family in his original application for protection in 2016. I am not satisfied that the applicant's family are aware of the circumstances of his wife's death.
The Tribunal accepted that the applicant’s family were opposed to his marriage to an Australian Christian, but did not accept that this would lead to serious harm:
50. …While I acknowledge that honour killings occur across India and in Punjab, based on inconsistencies in the applicant's evidence his general credibility, I do not accept that the applicant's family has threatened to kill him or that they would be motivated to find him for that purpose…
The Tribunal also did not accept the applicant’s claims regarding his uncle or that he would face harm upon return to India as a result of his religion:
51. I further do not accept the applicant's claim that his paternal uncle is wealthy and has political connections or influence within the Indian police. Other than general comments that he worked as a social - or electoral - worker for the Akali Dai and has friends in the police, the applicant was unable to provide any specific details regarding his uncle's connections or how they might be used to locate him. The applicant was put on notice as to the deficiencies in his evidence in the delegate's decision.
52. The applicant has not alleged that he has or would be threatened by members of the community outside his family. I also note that the applicant would be returning to India alone - as a consequence of his wife's death, he would not be returning as a member of an inter-religious married couple. While the applicant is not currently practicing (sic) his religion, he continues to identify as Hindu and outlined that his lack of participation is primarily due to a lack of funds while he is unable to work in Australia. I therefore find that he would not face any harm as a result of his religion or faith. Further, he has not alleged that he would face harm for any other reason.
The Tribunal further considered the applicant’s capacity to give evidence in light of his claims regarding his mental and physical health:
53. The applicant was provided with a number of opportunities to submit evidence in relation to his mental and physical health and failed to do so. As such, I have assessed the applicant's claims with reference to general advice within the UNHCR Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, which sets out that some psychologically vulnerable applicants may take longer to recollect personal knowledge and recommends that a cautious approach be adopted to determining the plausibility of an applicant's account of their behaviour. In this case however, there were inconsistencies in evidence, a lack of specific details, a delay in application and a failure to submit additional evidence when provided with the opportunity to do so. The only evidence submitted in respect of the applicant's health was a script for hay fever medication. I therefore accept that the applicant suffers hay fever. I appreciate that the applicant has experienced a difficult time over the last few years, however without any expert opinion, I cannot make a finding that the applicant has depression, anxiety or any other medical condition.
At [54], the Tribunal did not find the applicant to be credible upon consideration of all of the evidence cumulatively and having had regard to the applicant’s narrative as a whole. The Tribunal did not accept the applicant faced a real chance of persecution, now or in the reasonably foreseeable future for any reason if he returned to India and found that he was not a refugee withing the meaning of s 5H of the Act and does not fall within Australia’s protection obligations under s 36(2)(a) of the Act: at [56].
The Tribunal found for the same reasons that the ‘real risk’ element of s 36(2)(aa) of the Act had not been met, as it found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: at [57].
APPLICATION FOR JUDICIAL REVIEW
The amended application lodged on 17 October 2024 and accepted for filing on 18 October 2024 sets out one ground of review as follows:
1. The Tribunal failed to comply with s 425.
Particulars
a. The Applicant provided a statutory declaration by Mr [S] dated 16 November 2018 that corroborated his claim that his family in the Punjab, India wanted to harm him.
b. At the hearing on 28 November 2018, the Applicant said he could get Mr [S] to give evidence if the Tribunal wanted.
c. The Tribunal did not respond to the Applicant's request.
d. The Tribunal's response misled the Applicant into believing Mr [S]’s attendance was not necessary and therefore Mr [S]’s evidence in the statutory declaration was not in issue.
e. The Tribunal did not accept the evidence in Mr [S]’s statutory declaration.
f. Accordingly, the Tribunal failed to comply with s 425 to give the Applicant a real and meaningful opportunity to present evidence from Mr [S] or make arguments to the weight that ought be given to Mr [S]’s statement.
An affidavit in support of the amended application was also lodged on 17 October 2024 and accepted for filing on 18 October 2024. That affidavit attaches transcripts of the hearings conducted by the Tribunal on 28 November 2018 and 20 December 2018. Relevantly in respect of the amended grounds of review, there was no express reference to Mr [S]’s statutory declaration or availability to present evidence to the Tribunal during the 28 November 2018 hearing. The Tribunal, however, asked the applicant questions about his “friend who went back to India and spoke to” the applicant’s family including who he met with, what he told the applicant’s family and what they said to him.
During the 20 December 2018 hearing, however, the following exchange occurred:
Member: As we discussed previously, my biggest concern at the moment with what you've outlined is that there aren't any examples that I can find on a killing, where the family has killed the male and also it is been six years since you last spoke to your family. So it's difficult for me to see that they're still holding that, they're still having that feeling towards you.
Applicant: That's why they're not talking to me at all.
Member: Okay, but not talking to you is not persecution. Do you understand? There'd have to be a genuine fear that they would harm you if you returned and I can't find anything that says that single men have been harmed by their families in the circumstances you are describing.
Applicant: To find this out, I approached Mr [S], who went to India. He has given you a statement?
Member: Yes, I have that.
Applicant: I told them that my life... I passed the word that my life isn't so good, I'm sick and Mr [S] has told you what my family's response was.
Member: Is your friend in Melbourne?
Applicant: Yeah.
Member: Yeah, it's Mr. [S]. Is that right?
Applicant: Yeah.
Member: Is there a reason he didn't come to the tribunal to give evidence?
Applicant: I think he's at work today. Yeah, I think he's at work. But if you want I can get him here next time. But this time, at this moment he would be at work.
Member: Have you thought about moving to another area within India if you were to return?
Applicant: The main thing is if I'm being tracked. I'm just asking to repeat that.
Member: Okay.
Later, the same transcript records the following exchange between the Tribunal member and the applicant:
Member: Okay. So if there's nothing else that you, no other evidence, because I won't speak with you again, I'll just receive your information through documentation. This is the last chance you'll have to tell me anything that is relevant to your claim. So it's just the last chance, is there anything else you want to tell me?
Applicant: I would just request you to just take the right decision. Immigration has been racist to me, they haven't offered me any work rights. I would really request you to take the right path.
HEARING OF APPLICATION
The hearing of the application was conducted by videoconference in this Court on 7 November 2024. The applicant was represented by counsel. The materials before the Court in respect of the application are:
(a)the applicant’s application for review filed on 15 April 2019;
(b)the applicant’s amended application for review dated 17 October 2024;
(c)affidavit sworn by Hajeong Shin on 17 October 2024 (marked exhibit 1A);
(d)the applicant’s written submissions dated 17 October 2024;
(e)a Court Book filed by the Minister on 15 September 2021 (marked Exhibit 1R),
(f)the Minister’s written submissions filed on 31 October 2024; and
(g)the parties’ joint list of authorities.
CONSIDERATION
This Court’s judicial review function
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as relevantly including failing to observe some applicable requirement of procedural fairness.
The statutory scheme – conduct of review
The delegate’s decision to refuse to grant the applicant a visa was a Part 7-reviewable decision within the meaning of s 411(1)(c) of the Act as it stood at the time of the review. On receipt of a valid application and subject to an exception which does not arise in this case, the Tribunal was under an obligation to review the decision: s 414(1).
In reviewing a decision, the Tribunal was required to act according to substantial justice and the merits of the case: s 420(b). The Tribunal’s way of operating was also governed by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which required the Tribunal, when carrying out its functions, to pursue the objective of providing a mechanism of review that was accessible, fair, just, economical, informal and quick, proportional to the importance and complexity of the matter and promoted public trust and confidence in the decision-making of the Tribunal. By these provisions, the Tribunal was “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law”: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332; [2013] HCA 18 at [14], per French CJ.
Division 4 of Pt 7 of the Act provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with: s 422B(1). In applying Div 4, the Tribunal was required to act in a way that was fair and just: s 422B(3). The following paragraphs concern those parts of Div 4 of Pt 7 which are relevant to this application.
The Tribunal was required, subject to exceptions not presently relevant, to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). The Tribunal had the power to take evidence on oath or affirmation: s 427(1)(a). It also had the power to get any information that it considered relevant. If such information was obtained, it was required to have regard to that information in making the decision on the review. It was also empowered to invite a person to give information either orally or in writing: s 424 (1) and (2). These provisions gave the Tribunal wide discretionary powers to investigate an applicant’s claims but did not impose a general duty to make such inquiries: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [1], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Citizenship v SZGUR(2011) 241 CLR 594; [2011] HCA 1 at [19], per French CJ and Kiefel J (Heydon and Crennan JJ agreeing).
As explained by the plurality of the High Court in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [22], per McHugh, Gummow, Callinan and Heydon JJ:
As might be expected in view of the importance of the proceedings, particularly for person in the position of the appellant, the legislation [governing the Tribunal’s review of the decision] was detailed, and it provided for procedures of some solemnity.
The review process set out in Pt 7 involved a determination on the merits of whether or not the applicant satisfied the criteria for a protection visa: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [48], per Black CJ, French and Selway JJ. As the Full Court explained, “the conduct of a review was a necessary condition of the exercise of the Tribunal’s powers in making a final decision of the kind set out in s 415(2). A failure to undertake a review would vitiate any purported decision made pursuant to s 415”. Such a review requires consideration of the application which is the subject of the review in light of information, evidence and arguments relevant to the application and provided to the Tribunal or obtained by the Tribunal for itself: NABE at [49] citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].
Applying the concepts of what is fair and just in the context of the duty of the Tribunal to invite an applicant to a review to appear and its centrality to the conduct of a review “requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [58]-[61], per Hayne, Kiefel and Bell JJ. Section 422B(1) of the Act does not exclude the implication that the Tribunal “is to act reasonably as a condition of the performance of its overriding duty to review a decision” or “as a condition of its procedural duties and the exercise of its procedural powers”: Li at [94], per Gageler J. That said, the Tribunal is not obliged “to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence”: Li at [82], per Hayne, Kiefel and Bell JJ. As explained by Gageler J (as his Honour then was) in Li at [98]:
The [Tribunal] does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The [Tribunal] does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the [Tribunal] in fact did; and (ii) that unreasonableness, or neglect, on the part of the [Tribunal] is shown to be material to the outcome of the review that the [Tribunal] has undertaken in fact.
Section 5AAA of the Act was relevant to the review. The provision applies to a non-citizen who claims to be a person in respect of whom Australia has protection obligations. It provides that for the purposes of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim: s 5AAA(2). Section 5AAA(4) provides that the Minister does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the non-citizen’s claim, or establish, or assist in establishing, the claim. In EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309, Kenny J noted at [65] in the context of s 5AAA that “the statute necessarily affects the boundaries of legal reasonableness”.
Applicant’s submissions
The applicant notes the central issues in the review were whether the applicant’s marriage would be known in India, whether his family would have still harboured hostility towards him, and, given the country information, whether as a male he would have been targeted for harm. One of the ways the applicant sought to deal with those issues was with the two statutory declarations he provided to the Tribunal before the hearings: his own statutory declaration dated 21 November 2018, and that of Mr [S].
The applicant submits the Tribunal failed to provide him with a real and meaningful hearing pursuant to s 425 of the Act. The applicant referred to the exchange between the Tribunal and the applicant regarding Mr [S]’s availability to give evidence. The applicant describes the culmination of this exchange involving the Tribunal responding with silence and moving on. It is submitted in this context that the Tribunal’s silence suggested to the applicant that Mr [S]’s attendance was not necessary, and therefore his statement would be accepted. The applicant also relies on the Tribunal’s questioning of the applicant about Mr [S]’s trip to India during the first hearing during which the Tribunal had not expressed any doubt about the veracity of Mr [S]’s statement
Against this background, the applicant accepts it is not for the Tribunal to make the applicant’s case or identify deficiencies. It is submitted, however, a Tribunal may in specific circumstances mislead an applicant into considering that a matter was not in issue.
The applicant relies on SZUON v Minister for Immigration and Border Protection (No 2) [2019] FCA 348. That case concerned a failure of the Tribunal to respond to correspondence from an applicant’s migration agent offering to conduct a Freedom of Information (FOI) request to obtain the reasons given for providing the applicant’s relatives with protection visas “if the Members [sic] wishes us to do so”. The Tribunal went onto to affirm the subject decision.
In his written submissions concerning SZUON, the applicant submits the following:
16. His Honour, Rangiah J held that the effect of the Tribunal’s silence was to mislead the applicant. This was despite the fact the Tribunal had expressly told SZUON’s representative that it was a matter for them to put information before the Tribunal. This in turn constituted a failure to comply with s 425 of the Act. His Honour held at [58]:
It is true that under the Act there is no freestanding obligation upon the Tribunal to answer a question from an applicant as to whether the Tribunal wishes the applicant to provide further information. However, there is an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing. In the particular circumstances of this case, given the course of correspondence, the appellant’s migration agent was entitled to expect some form of response from the Tribunal to his query. The Tribunal’s silence was misleading because it suggested that the Tribunal did not require the appellant to obtain the documents. That the migration agent was also at fault does not deprive the Tribunal’s silence of its misleading character. In my opinion, the Tribunal’s misunderstanding and failure to respond deprived the appellant of a fair opportunity to present evidence to the Tribunal. That was a breach of the Tribunal’s obligation under s 425(1) of the Act.
17. This case is similar to SZUON. The Applicant, unrepresented, expressly said he could provide a witness if the Tribunal wanted it. He received no response. The Tribunal either failed to understand or respond to the query. Either way, in the context of the hearing, this tended to indicate the Tribunal had no difficulty with the Applicant’s failure to call Mr [S] or Mr [S]’s statement.
18. The Applicant accepts the Tribunal told the Applicant at the end of the hearing it was his responsibility to make his own case. This general statement though did not undo the specifically misleading conduct in relation to whether the Applicant ought bring Mr [S] as a witness.
The applicant also accepts the Tribunal did not express that it had afforded little weight to Mr [S]’s statutory declaration for any reasons associated with him not attending to give evidence. However, the applicant submits in circumstances where the Tribunal has found the evidence in Mr [S]’s statutory declaration was vague and not detailed, this may be equated with it saying, “I couldn’t rely on that statutory declaration on its own without more detail”. The applicant, in making his statement that he can make him available, was willing to provide the witness to provide that additional detail. In that way, the absence of Mr [S] giving evidence has potentially affected the weight the Tribunal gave to that matter.
Although the applicant had a migration agent and did not indicate in his response to the hearing invitations that Mr [S] was to give evidence, the applicant submits this was an issue that arose in the hearing after the invitation had been provided. After the applicant made his offer to make Mr [S] available, the Tribunal did not tell the applicant it was for him to make the case and that if he wanted the Tribunal to hear from him and be persuaded by his evidence it was up to him. If it had done so, the applicant would have been aware the statutory declaration was not sufficient.
The applicant also accepts he does not put his case as high as suggesting a Tribunal always has to tell an applicant a statutory declaration is not going to be accepted. Where, as in the circumstances of this case, the applicant made an offer to provide the witness and the Tribunal says nothing, the applicant was misled rather than alerted to the statutory declaration not being sufficient evidence in and of itself.
Finally, the applicant submits that the error was material for the reasons outlined in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, [34] – [39], per Kiefel CJ, Keane and Gleeson JJ.
Minister’s submissions
The Minister accepts the s 425 invitation to the applicant to attend an oral hearing for the purpose of giving evidence and presenting arguments must not be a “hollow shell” or an “empty gesture”; the invitation must be “real and meaningful”: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR128 FCR 553; [2003] FCAFC 126 at [33], [37]. It was submitted, however, that s 425 of the Act did not require the Tribunal to actively assist the applicant in putting his case or undertake an inquiry in order to identify what that case might be: SCAR at [36]. The Minister also submitted the Tribunal is not required to conduct an inquiry to ascertain whether the applicant’s case “might be better put or supported by other evidence”: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [36], per Keane CJ and [49] per Emmett J.
The Minister submitted the Tribunal did not conduct the hearing in a way that portrayed to the applicant that the Tribunal accepted Mr [S]’s declaration, thereby denying the applicant a fair hearing. The Minister submits this case is factually distinguishable from SZUON. In that case, the breach of s 425 in SZUON arose in the very specific circumstances in which the Tribunal had misunderstood the appellant’s position and had proceeded to make a decision before completing the ongoing exchange with the appellant about the provision of further documents.
The Minister argues in this case – and in stark contrast to SZUON – there was no ongoing discussion between the applicant and the Tribunal about whether the Tribunal was expecting the applicant to produce further evidence of any particular kind. The applicant had not proposed to call Mr [S] to give oral evidence in the ‘Response to hearing invitation’ provided to the Tribunal by the applicant’s representative on 22 November 2018. The Minister submits the Tribunal did not suggest, through its “silence”, that evidence should not be obtained from Mr [S]; the Tribunal merely asked the applicant why Mr [S] did not come to the Tribunal to give evidence. The Minister submits the applicant’s response to that (“I think he's at work today. Yeah, I think he's at work. But if you want I can get him here next time. But this time, at this moment he would be at work”) did not require any response in the circumstances of this case.
Accordingly, the Minister submits there is no basis to find that the Tribunal misunderstood the applicant’s position or denied the applicant the opportunity to provide evidence. The applicant was on notice that the Tribunal considered his rejection and ostracism by his family would not constitute persecution, and that the applicant needed to satisfy it that he genuinely feared harm by his family if he returned to India. Nothing subsequently said (or not said) by the Tribunal conveyed that the issues arising on the review had changed. Further, the Minister submits the applicant was informed at the end of the Tribunal hearing that unless he provided further information by 31 January 2019, the Tribunal would make a decision based on the material before it. Having regard to the course of the hearing as a whole, the Minister submits the applicant could not reasonably have taken from the brief discussion of where Mr [S] was that Mr [S]’s evidence would be accepted. The Minister submits the applicant was accordingly not denied the opportunity to be heard by the Tribunal as required by s 425 of the Act.
Discussion
The first matter to note is that the key issue arising in relation to the decision under review was the same for both the Tribunal and the delegate, that is, whether the applicant was at risk of harm at the hands of his family due to his marriage to an Australian Christian woman who was a drug addict if he returned to India. The applicant addressed the issue by providing his own statutory declaration and that of Mr [S]. That evidence sought to establish that the applicant’s family was angry with him, that their animosity towards him endured, they had threatened to kill him if he returned to India to restore their honour and that those threats were current. The applicant had given evidence before the Tribunal that he had not spoken to any member of his family since late 2012. He also asserted he was at risk of harm even if he relocated to a different area in India.
The applicant was represented by migration agents throughout the course of the review although he appeared without a representative at both hearings. The response to hearing invitation form submitted on his behalf indicated that the applicant did not request that the Member take oral evidence from another person.
Turning to the decision of Rangiah J in SZUON, it is important to note the following. First, part of the appellant’s case in that matter was that a family member had been granted a protection visa in respect of the same events as those claimed by the appellant. Secondly, the Tribunal engaged in communication with the appellant and his agent regarding whether they wished to consider whether they wanted the Tribunal to take into account the relative’s claims. In response to a positive indication that the appellant did wish those matters to be taken into account, the Tribunal again wrote indicating it was up to the appellant to provide any further submissions including material in relation to the relative’s claims. The Tribunal made clear no further enquiries would be made by them. There was further correspondence culminating in the appellant’s agent indicating they would lodge an FOI Application to obtain the reasons for granting the relative a protection visa if the member “wishes us to do so”: at [43]. There was no response to that correspondence. Thirdly, the member proceeded to decide the matter, noting the appellant’s representative’s correspondence but erroneously stating he said he would be making an FOI application, but the Tribunal had not received any further material. Fourthly, the Tribunal’s decision noted the appellant’s relative had been granted protection in Australia but distinguished the appellant’s situation from that of his relative. The Tribunal also noted it did not have the decision record or other evidence before it to confirm the relative obtained protection based on acceptance of the claims as presented. Consequently, these circumstances were expressed as not altering the Tribunal’s analysis and conclusions. Fifthly, the primary judge, with whom Rangiah J agreed, found the appellant’s agent had asked a question in their letter to the effect that they would make an FOI application if the Tribunal wished them to do so but that the Tribunal had incorrectly characterised the question as a statement.
Against that background, Rangiah J observed at [48]: “the letter from the migration agent was, effectively, a request for an indication as to whether it was necessary for the FOI application to be made in order for the Tribunal to find in the appellant’s favour, given the material that had already been provided”. Rangiah J also noted the appellant’s agent was at fault in not following up the query or making the FOI application and asking for further time. Rangiah J then concluded the appellant was denied procedural fairness by the Tribunal failing to answer the appellant’s agent’s query through its misunderstanding of the letter. The issues identified by Rangiah J at [52] were whether the Tribunal’s failure to provide a response was misleading and whether it was obliged to respond in the circumstances.
At [57], Rangiah J noted that s 425(1) of the Act requires that an invitation to appear before the Tribunal must be meaningful in the sense that it must provide an applicant with a real chance to present his or her case. In this case, his Honour concluded the appellant was denied an opportunity to present further evidence through the member’s misunderstanding of the agent’s letter and the consequent failure to respond. It was noted this occurred in the context of ongoing discussion initiated by the Tribunal concerning the provision of further material which had not been closed off by the time the agent sent the letter.
At [58], Rangiah J noted there is no freestanding obligation upon the Tribunal to answer a question for an applicant as to whether the Tribunal wishes the applicant to provide further information. His Honour held, however, that there was “an obligation on the Tribunal not to mislead an applicant in a way that deprives the applicant of the opportunity of a real hearing”. His Honour found in the circumstances the agent was entitled to expect some form of response from the Tribunal to his query. He further found the Tribunal’s silence was misleading because it suggested the Tribunal did not require the appellant to obtain the documents. The Tribunal’s failure to respond deprived the appellant of a fair opportunity to present evidence and was a breach of its obligations under s 425(1).
Did the Tribunal mislead the applicant?
As Rangiah J’s decision in SZUON shows, it is first necessary to establish whether, as a matter of fact, the applicant in this case was misled by the Tribunal’s conduct. The applicant has not given evidence that he was in fact misled. It is a question, therefore, whether the circumstances of the hearing, including the applicant’s exchanges with the Tribunal member, objectively establish the applicant was misled. The applicant’s case is that the Tribunal’s conduct was such that he was misled into believing that Mr [S]’s statutory declaration would be accepted and that his attendance at the hearing was not necessary.
In this case, the applicant had directly referred to and relied on Mr [S]’s statement in response to the member raising the issue whether his family were holding feelings towards him. The applicant clearly understood it was an important part of the case he was meeting. The member’s question, “Is there a reason he didn’t come to the tribunal to give evidence?” is not accompanied by any suggestion that the evidence contained in Mr [S]’s statement may or may not be accepted.
I accept the applicant stated he could get Mr [S] to the Tribunal to give evidence next time if the Tribunal wanted him to do so and that the Tribunal did not respond to that offer. In my view, this failure to respond did not, objectively and relevantly mislead the applicant to believe Mr [S]’s evidence would be accepted. Further it did not have the effect of denying the applicant an opportunity to present evidence from Mr [S] or make arguments as to the weight to be given to his statement.
I have already observed the Tribunal gave no indication one way or the other that it did or did not accept Mr [S]’s evidence during its exchanges with the applicant. In those circumstances, it is not open to conclude the failure to respond to the applicant’s offer conveyed the impression that evidence would be accepted. In this way, the circumstances are also relevantly distinguishable from the case in SZUON. There, the Tribunal had raised with the appellant whether he wished it to take into account the relatives’ statements of claim and the decision of the Department. A gap in the information supplied thus far had been identified by the Tribunal, namely the basis upon which the appellant’s family member’s claims for protection had been decided. The Tribunal had indicated more would need to be done for it to take that matter into account. The proposed FOI application was intended to address that gap if the member wished the appellant to do so. In the present case, there was no similar identification by the Tribunal of an issue or issues with Mr [S]’s statement.
The Tribunal did not put its concerns with Mr [S]’s statement to the applicant. It was not required to. The concerns which lead the Tribunal to afford little weight to Mr [S]’s statement related to the perceived inconsistency between the applicant’s evidence he was a non-observant Hindu and Mr [S]’s evidence he met the applicant at a Sikh temple they both regularly attended, together with the absence of detail in Mr [S]’s statutory declaration. The existence of doubts, inconsistencies, lack of detail and gaps in the evidence or weight to be given them are not “information” for the purposes of s 424A of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Ultimately, it was a matter for the applicant to advance the evidence or arguments he wished to advance in support of his claim for protection: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 576, per Gummow and Hayne JJ. While the Tribunal was obliged to provide the applicant a real chance to present his case, this should not be equated with affording an applicant every opportunity to do so and to improve upon their evidence: Li at [58]-[61] and [82], per Hayne, Kiefel and Bell JJ. In this context, it is also significant that an invitation to a hearing need not be given if the Tribunal considers it should decide the review in favour of an applicant based on the material before it: see s 425(2)(a) and SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [36], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
I am not persuaded the applicant was misled. Further, I am not persuaded the applicant was denied the opportunity to present evidence from Mr [S] or make submissions as to the weight to be afforded his evidence. He had that opportunity when he appeared before the Tribunal on the first occasion. That opportunity was communicated to the applicant (via his representative) when the hearing invitation was provided. The opportunity was declined when the applicant advised in the response to hearing invitation form returned to the Tribunal that he did not request the Tribunal to take oral evidence from another person. The Tribunal’s decision was not, therefore, affected by jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application as amended on 18 October 2024.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 January 2025
0
26
1