Bwo19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] FCCA 384

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWO19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2020] FCCA 384

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal properly considered all evidence before it – whether the Administrative Appeals Tribunal erred in failing to warn the applicant that legal professional privilege may enable him to refuse to answer questions – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 65, 411, 422B, 424A, 424AA,

425, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64

Mann v Carnell (1999) 201 CLR 1

Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341

DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499

AEC15 v Minister for Immigration & Anor [2015] FCCA 3428

Australian Securities and Investments Commission v Park Trent Properties

Group Pty Ltd [2015] NSWSC 342

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Applicant:

BWO19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1123 of 2019

Judgment of:

Judge Emmett

Hearing date:

13 February 2020

Date of Last Submission:

13 February 2020

Delivered at:

Sydney

Delivered on:

9 March 2020

REPRESENTATION

Solicitor for the Applicant:

Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents:

Ms Katherine Hooper

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1123 of 2019

BWO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 12 April 2019 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 9 November 2015 refusing the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
The applicant is a citizen of India and of Sikh faith and Indian ethnicity, who fears harm in India and Thailand.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, including the applicants claims, and a summary of the Tribunal’s review and decision.

Background

The applicant arrived in Australia on 6 March 2014 having departed legally from Thailand on a passport issued in his own name and a (Subclass 600) Business visa.
On 22 December 2014, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).
On 9 November 2015, the Delegate refused the applicant’s application for a Protection Visa.
On 23 November 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 12 April 2019, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 6 May 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative Framework

Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 5J of the Act defines the meaning of well-founded fear of persecution.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A 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.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a Protection Visa

The applicant provided a statement in support of his Protection Visa application in which he stated:
a)The applicant is a Sikh and his wife and child live in India.
b)The applicant came to Australia on a business visa, prior to which he had been living in Thailand since 2011, where he ran a business. The applicant ran the same business in India prior to living in Thailand.
c)The applicant’s clients would purchase business items from him on loan.
d)The applicant’s clients gave him excuses in response to his requests for the cost of the unpaid items.
e)Just before leaving Thailand the applicant started to receive threatening calls and messages. The messages and calls told the applicant that if he wanted to remain safe he would not request the outstanding money and/or leave Thailand.
f)The same callers and messages said they would not leave the applicant alone even if he were to return to India as they had resources there and could harm him.
g)The applicant’s life was threatened both in India and in Thailand. The applicant fears for his life if he was to be returned to India or Thailand.
h)There is no safety for the applicant in India as anarchy is on the rise and India does not have enough resources to cope. Complaints like the applicants are not taken seriously in India.

The Delegate’s decision

On 4 November 2015, the applicant attended an interview with the Delegate.
After a break during the interview with the Delegate, the applicant raised the following further claims:
i)The applicant’s troubles are due to his religious belief, being a Sikh.
ii)In Thailand the applicant went to report the matter to the police but they ignored him and said he must not have provided proper service.
iii)The applicant’s problem started when he did not get compensation.
iv)The applicant is unable to return to Thailand as those who threatened him are well connected, and are Hindus.
On the evidence and material before it, the Delegate found the applicant to be a national of India and, as such, found that India was the receiving country for the purposes of the hearing. The Delegate also found that the applicant did not have a right to enter and reside in a country other than India.
The Delegate noted that the applicant’s written claims were of a criminal nature and there was not a Convention nexus.
However, the Delegate was satisfied that the applicant feared persecution for reasons of religion on the basis of his claims raised at interview.
The Delegate noted that country information indicated that the applicant being a Sikh would not make him of adverse interest to the Indian authorities, nor prevent him from obtaining state protection. Further, the Delegate found that country information indicates that effective State protection is available to Indian citizens. In making that finding the Delegate considered the applicant’s claims that those threatening him had connections with the Government in India and also the military.
The Delegate considered relocation of the applicant to another part of India. In doing so the Delegate noted that country information indicated that the applicant would not be prevented from earning a living and/or starting a new business with new clients. Ultimately, on the basis of the information before the Department, the Delegate was not satisfied that a real chance of persecution related to all areas of the receiving country as required under s.5J(1)(c) of the Act.
Having considered all the applicant’s claims for protection, both individually and cumulatively, the Delegate was not satisfied on the available evidence that there was a real chance of persecution occurring in the foreseeable future.
In light of the finding that the applicant could obtain protection from the Indian authorities and could relocate within India, the Delegate did not give consideration to Thailand.
The Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act. Therefore, the Delegate was also not satisfied the applicant was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act.
The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there was a real risk he would suffer significant harm. Therefore, the Delegate found that the applicant was not a person in respect of whom Australia had protection obligations as outlined in s.36(2)(aa) of the Act.
On 9 November 2015, the Delegate refused the applicant’s application for a Protection Visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

On 23 November 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The applicant provided further documents in support of his review application including two separate written submissions and various supporting material.
On 20 March 2018, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 8 June 2018 to give oral evidence and present arguments.
On 8 June 2018, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal’s review and decision is summarised in the first respondent’s written submissions as follows:
“7. The review application to the Tribunal indicates the applicant was assisted by Mr Muhammad Chaudhry of ‘MIC LAWYERS’, described in the form as a ‘[r]egistered migration agent’: CB 87.
8. Subsequently, the applicant changed his representation before the Tribunal to a Ms Pratibha Sharma: CB 93. The applicant attended a hearing before the Tribunal on 8 June 2018, accompanied by Ms Sharma: CB 172.
9. The Tribunal made its decision on 11 April 2019: CB 182.
10. The Tribunal rejected the applicant’s credibility and the entirety of his material factual claims as fabricated: CB 192[79], 197-198[105]. In so finding, the Tribunal relied on the omission of claims from the applicant’s protection visa application, his delay in applying for a protection visa, and his repeated return travel to India which he also did not declare in his visa application.”

The proceeding before this Court

The applicant was represented before this Court by his solicitor, Mr Jones.
Mr Jones confirmed that the applicant relied on the grounds contained in the Amended Application, filed on 5 September 2019, as follows:
“1. The Tribunal erred by failing to exercise its jurisdiction by misdirecting itself as to the nature of the evidence before it.
Particulars
The Tribunal took the view that the Applicant's claims in relation to arrests by the police in 1991-1992 were not raised until after the delegate's refusal and subsequent application for review. In fact the claims were made to the delegate at an interview before the decision.
2. The Tribunal exceeded its jurisdiction by failing to observe an inviolable limitation or restraint on the exercise of its powers.
Particulars
The Tribunal questioned the Applicant concerning communications between the Applicant and his lawyer. Before doing so, the Tribunal was under an obligation to advise the Applicant that legal professional privilege entitled him to refuse to answer the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance, but it failed to do so.”

Ground 1

Ground 1 asserts that the Tribunal failed to consider the totality of the evidence before it or failed to engage intellectually with evidence in relation to the applicant’s claims of arrests by the police in 1991 and 1992.
The particulars to Ground 1 assert that the Tribunal found that the applicant’s claims in relation to arrests by police in 1991 and 1992 were not raised until after the Delegate’s refusal and subsequent application for review, whereas the applicant submitted that in fact the claims had been made to the Delegate at an interview before the Tribunal’s decision.
In its decision record, the Tribunal found that the applicant invented claims of past harm for the purpose of a obtaining a Protection Visa. The Tribunal found that the applicant had provided a “compact narrative” in his written application for protection which confined his claims to a business dispute. After being unsuccessful before the Delegate, the Tribunal found that the applicant had “fabricated an entire backstory for his time in India, and greatly expanded on his claims for his time in Thailand.”
However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal was referring to the applicant’s written Protection Visa application in making the findings above. The Tribunal explained itself in the following paragraph from its decision record as follows:
“The applicant’s oral explanations to the Tribunal about his failure to provide some meaningful detail of his claims in his written protection visa application concerning his past claimed harm in India are not persuasive. The Tribunal does not accept that the applicant, who availed himself of the migration agent to complete the form, had three meetings in the preparation of his written protection visa application, would not have provided this information in his written application. The Tribunal does not accept that the applicant’s previous migration agent would act in such a way as to disadvantage the applicant’s protection visa claim, because it would inevitably result in concern being raised about the credibility of a late claim being raised by the applicant. The applicant’s written protection visa application makes no mention of the now claimed occurrences in India, claims that he was being targeted because of his Sikh religion, or anything other than a claim that had had difficulty in his business dealings with customers who did not come good on his payments for the applicant’s services, and that he started receiving threats just before travelling to Australia from Thailand. He was told that they would not leave him alone in India or Thailand, had that he had threats to his life in India and Thailand.”
Accordingly, in the circumstances, the allegation in Ground 1 that the Tribunal erred by finding that the applicant’s claims in relation to arrests by police in 1991 and 1992 were not raised until after the Delegate’s refusal and subsequent application for review misstates the concern expressed by the Tribunal and referred to above. The Tribunal does not assert that the claims were not made to the Delegate at interview. The Tribunal’s concern was that the claim was made subsequent to his written Protection Visa application in circumstances where he had the assistance of a migration agent. I do note that the solicitor for the applicant does not suggest that the claims were raised in the Protection Visa application.
The Tribunal considered in some detail the applicant’s explanations as to why he had not raised these claims in his Protection Visa application, however, the explanations were ultimately not accepted by the Tribunal.
Ultimately, the Tribunal found that the applicant had attempted to shift the blame to his previous migration agent in completing the written application and suggesting the problems with the Delegate’s interview to account for the problems the Tribunal had with the applicant’s evidence. However, this is not the case. The Tribunal is satisfied that the deficiencies in the applicant’s evidence are due to the fact that his claims are a fabrication.

The Tribunal’s concerns in relation to the recent claims to which it found to be a fabrication, when coupled with the delay in the applicant applying for protection and the applicant’s return trips to India, ultimately led the Tribunal to reject comprehensively the applicant’s claims of past harm in Thailand or India. Whilst the Tribunal accepted that the applicant was a Sikh, it was not satisfied that the applicant was at risk of harm for this reason. This was because the Tribunal did not accept that the applicant has a profile connected with terrorists groups because it rejected the applicant’s claims that he became associated with such groups through his tailoring work.
Accordingly, the Tribunal found that the applicant did not satisfy the refugee criteria under s.36(2)(a) of the Act or the complementary protection criteria under s.36(2)(aa) of the Act and was therefore not a person to whom Australia has protection obligations.
Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
In the circumstances, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal questioned the applicant about communications between the applicant and his lawyer without giving the applicant a warning that legal professional privilege may entitle him to refuse to answer the questions asked of him by the Tribunal.
The applicant’s solicitor read the affidavit of Winnie David, affirmed 4 June 2019, annexing a transcript of the Tribunal hearing. The relevant parts of the transcript on which the applicant relies are set out in the written submissions of the solicitor for the applicant, as follows:
“Q. Okay, all right. So, with that application that was written I see that you had the assistance of a migration agent. Is that right?
A. INTERPRETER: Yes, yes, they did it for me.
Q. All right. And in the application you signed that it was true and correct?
A. INTERPRETER: Because I signed it, but I was told that they will ask for more information which they never asked me later or never informed me, but there’s more information.
Q. I don’t understand what you mean, can you explain that?
A. INTERPRETER: Some of the points I told them that is right, but it needed further explanation or further description of some of the events that took place. That was not given.
Q. Now, when you say that was not given, are you saying that you provided that information and that your agent didn’t put it down or are you saying that they told you that you didn’t need it or did they not ask you questions. You’ll need to explain that for me please.
A. INTERPRETER: Because they told me that they will get it later and submit it later, on a later date.
Q. Okay.
A. INTERPRETER: With the ..(not transcribable).. date.
Q. Okay. Can you tell me exactly - can you give me an example of how that happened?
A. INTERPRETER: Like now I have put in the submission.
Q. Mm.
A. INTERPRETER: They told me that if the immigration asked for it, then we will need the submission. So, they didn’t give it at that point.
Q. No, they’ll need specifically, you know, if you say that they’ve left something out, I’m asking how that came about. Can you give me an example of when you were completing the application where something was left out and how it came to be left out?
A. INTERPRETER: At that time like the way, they filled the application, they just write the mean thing without any description or without any details.
Q. Mm-hmm.
A. INTERPRETER: And that’s what I mean that they were saying that the detail, they would submit it at a later date. It’s not wrong, it is correct, but the full details are not there.
Q. Okay. All right, so did they tell you to leave out the details or did you say that you would provide the details later?
A. INTERPRETER: Because they are under the impression, what they told me that - ..(not transcribable).. get the details and ask for detail later, which they never did. So, whatever was there, they just filled in the application.
Q. When you say you were under the impression of that, I’m asking you how some of the details came to be left out? I want to know how that came about?
A. INTERPRETER: Because I was not fully aware of this process.
Q. Yeah.
A. INTERPRETER: So, I was under the impression that they would ask for more details and then I’ll give them, or they will contact me later for more details and I’ll give it to them. They, at that time they didn’t mention that they would submit these details at a later date and I kept waiting that they would contact me which they never did. Like it had been prepared now, it’s complete.
Q. Yeah.
A. INTERPRETER: That information given in that application is correct. It’s not, there is no error in that, but it’s not so detailed as been done in the current application. I was also unaware of that and I was also - I had in mind that maybe they would ask in the interview or on that day, that they need such and such information, and then I’ll give them that information, but I was not asked for more information.
Q. When you say, “Given them” do you mean your agents?
A. INTERPRETER: Yeah, because I was relying on my, my migration agent, that they would advise me where to go from there and what to do next.
Q. Yeah. Okay. All right, so did you - I’m just trying to clarify when you said at the time that they would submit the details at a later date. Did your agent tell you that that’s what they would do or did you just presume?
A. INTERPRETER: That, that’s what I was advised we would be asked for more information and then we would go further detail, because I was, I wasn’t sure when we, we had to give this detailed information.
Q. Okay. So, did you tell your agent all of your claims to your agent?
A. INTERPRETER: Yes, yes I did tell them everything, but they, they said at this stage you just submit a summary of the event and we’ll give the details at a later date.
Q. Okay.
A. INTERPRETER: Because they just ..(not transcribable).. that somebody, of all the things which have happened--
Q. Mm-hmm.
A. INTERPRETER: --and they just submitted that summary with my application. Because they said there’s plenty time, we can give the details later.
Q. Okay. All right, so your application was signed on 18 December 2014.
A. INTERPRETER: Yes.
Q. Okay, all right. So, when did you first see the agents about the protection visa?
A. INTERPRETER: I don’t have the exact date in mind--
A. Mm.
A. INTERPRETER: --but I think a week or two weeks prior to that date--
Q. Mm-hmm.
A. INTERPRETER: --we met the agent, just to get some information.
Q. Yeah. So, how many appointments did you have with your agent?
A. INTERPRETER: Prior to that date?
Q. No, how many appointments have you had in total with that agent?
A. INTERPRETER: I used to visit that agent every month or two months after. Just to get an update to see
what’s happening--
Q. Okay.
A. INTERPRETER: --and they used to tell me that if they receive any update they will let me know.”
(Emphasis added)
The applicant’s solicitor referred the Court to SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64 (“SZHWY”). The applicant’s solicitor made the following submissions in relation to that case:
“13. Lander J at [12]-[14] referred to legal professional privilege as "a fundamental common law right and not merely a rule of evidence" and quoted extensive authority for that and similar characterisations of the privilege.
14. His Honour held at [44] that a person appearing or giving evidence in the Tribunal was entitled to claim legal professional privilege, and at [59] that it was not affected by the "exhausting" of the natural justice hearing rule in s 422B.
15. His Honour then considered the question of whether the Tribunal was under an obligation to advise an applicant that he or she was entitled to refuse to answer questions in breach of legal professional privilege, and held at [75]-[77] that it was.
16. Despite the fact that the Tribunal in that case had not relied on the evidence adduced in breach of the privilege, his Honour held at [82] that the Court should keep in mind "'‘the high purpose of vindicating the public law of the Commonwealth of upholding lawful conduct on the part of officers of the Commonwealth (and) of defending the rights of third parties under that law ...’: Re Refugee Tribunal; Ex parte Aala per Kirby J at 137". His Honour ordered that the decision of the Tribunal be set aside.
17. Graham J agreed that with Lander J concerning the privilege but held that s 422B operated to exclude a finding of denial of natural justice.
18. Rares J also agreed with Lander J concerning the privilege and that s 422B did not apply. On the question of relevance he found at [192] that the impugned evidence "may have made a difference to the result".
19. It is submitted that in this case the view of Lander J as to relevance should be preferred, but in any event the evidence about the communications with the representative was relevant to the Tribunal's assessment of the Applicant's credibility.
20. The Tribunal's failure to advise the Applicant that he had a legal right not to answer the Tribunal's questions about communications with his legal advisers in the preparation of the protection visa application amounted to jurisdictional error by breaching a fundamental common law right of the Applicant.”
It is common ground that the applicant’s migration agent was also a lawyer.
The first respondent’s counsel, Ms Hooper, submitted that the Tribunal’s questioning did not encroach on any area in which the applicant might have been able to claim legal professional privilege. In the alternative, the first respondent submitted that the applicant had waived legal professional privilege by acting inconsistently with the maintenance of the privilege by volunteering the substance of his communications with his agent and putting the content of those communications in issue before the Tribunal. In the further alternative, the first respondent submitted that any error by the Tribunal was not material and therefore not jurisdictional.
The questioning of the applicant by the Tribunal, commenced in the context of the applicant telling the Tribunal that not all the information in his Protection Visa application was correct and that he first found out about this at the interview with the Delegate.
The applicant explained that, although he signed the Protection Visa application, at the time he was told that he would be asked for more information from his migration agent. However, he was never asked for that information. The applicant told the Tribunal that some of the things he told the agent were written down but that further information was not given because he was told the agent would obtain that information later and submit it, but that the agent never did.
The applicant told the Tribunal that the agent filed the application and put “the main things” down but without description and without details because the migration agent would submit those details later.
The applicant told the Tribunal that the information was not incorrect. Rather, it was not “full” because full details were not there. The applicant said he kept waiting for the migration agent to contact him. The applicant confirmed that his previous migration agent had told him that more detailed claims would be submitted at a later date. The migration agent did not accompany the applicant to the interview with the Delegate.
The applicant told the Tribunal that there was a problem with communication at the interview before the Delegate and when asked to expand on what he meant, the applicant told the Tribunal that he did not understand what was occurring at the Delegate interview because of the language barrier. The applicant told the Tribunal that he could not concentrate at the Delegate interview because he “could not see what was happening”. The applicant then told the Tribunal that there was no problem at the interview except that information that should have been submitted, was not given.
The Tribunal noted that it pointed out to the applicant that he had used an interpreter throughout the interview and that there was a break after the Delegate finished his questioning during which the applicant was able to confer with his representative, at which the interpreter was present. The applicant responded that because the migration agent (being a different migration agent to the migration agent who helped him complete the Protection Visa application form) did not speak Punjabi the agent could not advise him properly. The applicant told the Tribunal that he did not know if the migration agent was fully aware of his case, and then told the Tribunal that the Delegate interview went fine, the only problem being that details that should have been given were not.
The Tribunal then noted that it asked the applicant why he did not tell the Delegate his story and the applicant said that he had just answered the questions but did not give full details. The Tribunal noted that it again asked the applicant why he had not done so, to which the applicant answered that so many things had happened and he did not give details of the events. The applicant stated that at the time, he was nervous and that he was trying to be brief when answering questions. The applicant again told the Tribunal that he was under the impression that he would submit more details after the interview.
The Tribunal asked whether the applicant raised his claims with the Delegate after he was given a break to confer with his migration agent and the applicant responded that he did. The applicant told the Tribunal that the migration agent was advising him through the interpreter but because his original migration agent (the person assisting him to complete the written Protection Visa application) was different to the one he had in the interview, there was some confusion.
The Tribunal then made the following findings in relation to those exchanges:
“The applicant’s oral explanations to the Tribunal about his failure to provide some meaningful detail of his claims in his written protection visa application concerning his past claimed harm in India are not persuasive. The Tribunal does not accept that the applicant, who availed himself of the migration agent to complete the form, had three meetings in the preparation of his written protection visa application, would not have provided this information in his written application. The Tribunal does not accept that the applicant’s previous migration agent would act in such a way as to disadvantage the applicant’s protection visa claim, because it would inevitably result in concern being raised about the credibility of a late claim being raised by the applicant. The applicant’s written protection visa application makes no mention of the now claimed occurrences in India, claims that he was being targeted because of his Sikh religion, or anything other than a claim that had had difficulty in his business dealings with customers who did not come good on his payments for the applicant’s services, and that he started receiving threats just before travelling to Australia from Thailand. He was told that they would not leave him alone in India or Thailand, had that he had threats to his life in India and Thailand.”
A fair reading of the transcript makes clear that the Tribunal was giving the applicant an opportunity to explain why new claims being raised before the Tribunal for the first time, were not included in his Protection Visa application. Had the applicant not been given that opportunity, it may well have been a denial of procedural fairness to the applicant to make adverse findings against him arising from his failure to provide the details of claims in his written Protection Visa application. The Tribunal apparently explored that issue with the applicant in great detail at the hearing but was ultimately not satisfied with the applicant’s explanation, leading the Tribunal to find that the applicant had fabricated an entire backstory for his time in India and greatly expanded on his claims for his time in Thailand.
Given the exploration by the Tribunal with the applicant about its concern about the failure of the applicant to mention such claims in his written Protection Visa application, it was open to the Tribunal not to be satisfied by his explanations and find that the deficiencies in his evidence were due to his claims being a fabrication.
When asked by the Tribunal whether his Protection Visa application was true and correct the applicant responded that he was told that he would be asked for more information but never was and that there was more information. It was certainly a legitimate field of exploration by the Tribunal with the applicant as to how it came about that some of the details about his claims were left out of his Protection Visa application.
In the course of his explanation, the applicant made clear that it was his migration agent who had told him what would happen next and that there would be an opportunity to provide details.
The first respondent summarised the Tribunal’s exploration as follows:
“28. The Tribunal confirmed that the applicant had the assistance of a migration agent (Q1), and then asked the applicant again whether the visa application he had signed was true and correct: Q2.
29. The applicant volunteered an answer, which was not responsive to the Tribunal’s question. That answer was: ‘[b]ecause I signed it, but I was told that they will ask for more information which they never asked me later or never informed me, but there’s more information’. This answer did not give rise to an obligation on the Tribunal to advise the applicant or any right to claim legal professional privilege.
30. The Tribunal proceeded to ask the applicant questions that sought to clarify his above answer. The applicant told the Tribunal – in effect – that he had been told by his migration agent that details or additional information could be supplied at a later stage of the visa application process and so, while the information in his visa application was correct, it was incomplete in some unspecified way(s).”
The Tribunal’s questions were procedural and concerned the way in which the applicant’s visa application form came to be completed. They were not questions that invited the disclosure of legal advice, unlike the situation in SZHWY at [75]. In SZHWY, in the course of discussion about the applicant’s substantive claims the following exchange took place between the applicant and tribunal member, where the tribunal member asked what the applicant’s solicitor advised him to do in relation to his substantive claim about a fear of harm because of his homosexuality. The exchange was as follows:
“625. Applicant Because I couldn’t tell him about the homosexuality because I was too afraid to tell him about that
626. Tribunal Member And what did he advise you to do?
627. Applicant Ah the, the solicitor?
628. Tribunal Member Hmm
629. Applicant Well he recommended to go for another meeting to discuss all the details
630. Tribunal Member And you didn’t go back
631. Applicant Yes for sure not
632. Tribunal Member Ok. Um, so you have had your passport issued for a while.”
However, even if the issue of legal professional privilege arose, as stated above, fairness demanded that the applicant be given an opportunity to explain the concern expressed by the Tribunal as to his failure to identify claims now pressed in his Protection Visa application (Mann v Carnell (1999) 201 CLR 1 at [29]).

It was clearly the applicant’s answer to the Tribunal’s question about whether the content of his Protection Visa application was true and correct, that referred to communications between himself and his then migration agent. That was not an answer invited by the Tribunal’s question. As the Full Court of the Federal Court stated in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341:
“43.The common law of legal professional privilege governs pre-trial procedures: see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. At common law, a person who would otherwise be entitled to the benefit of the privilege may become disentitled to rely on it by some act of “waiver”, either express or implied. “Issue waiver”, the subject of this case, is a form of implied waiver. In Mann at 13 [29], a majority of the High Court stated the basic principle of implied waiver, as follows:
“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. … What brings about the [implied] waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”
As the majority also said, at 13 [29], where such inconsistency arises, it does not matter that the privilege holder did not subjectively intend to lose the benefit of the privilege.
…
52. These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.”
In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58], Allsop J (as his Honour then was) referring to waiver occurring in an undue influence case when a party entitled to the privilege makes an assertion, stated:
“It is sufficient to understand, I think, that in most undue influence cases (and in Thomason when its circumstances are appreciated) the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.”
Further, in AEC15 v Minister for Immigration & Anor [2015] FCCA 3428 (“AEC15”) at [22], Judge Smith found that an applicant had waived privilege in the following circumstances:
“Here the Tribunal asked the straightforward question of why the applicant had waited for 12 days before lodging his application. In those circumstances it could not be necessarily expected by the Tribunal that the applicant would have disclosed some communication with a lawyer. Rather, that information was disclosed voluntarily by the applicant in a way that I find was inconsistent with the maintenance of confidentiality in that communication. I say that it is inconsistent because the applicant was putting that forward as an excuse for the delay. In other words, he was relying positively on what he was told as the basis as to why he did not lodge it within an earlier period after his arrival in Australia, having claimed that he had a subjective fear of persecution if he were returned to Bangladesh.”
Those facts in AEC15, to my mind, are on all fours with the case before this Court.
In Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd [2015] NSWSC 342 at [64], Sackar J stated:
“64. To seek to take advantage of that course of conduct is clearly open to the interpretation at the very least that the direction taken was done on advice so as to disclose the effect of it. Against that backdrop, to invite favourable consideration on at least the question of relief creates the unfairness and inconsistency in the defendant’s position. It wants to take advantage of the effect of the advice as I see it, and yet wants to maintain confidentiality in respect of it. It should not as a matter of fairness be permitted to approbate and reprobate in the relevant sense.”
(Emphasis added)
It was the applicant who introduced the subject of his migration agent’s involvement in the preparation of his visa application forms. The applicant did so voluntarily and in a manner that was not directly responsive to the Tribunal’s question. As stated above, the applicant was endeavouring to explain why his visa application did not present a complete account of his claims. By so doing, the applicant put the contents of his discussions with his migration agent in the course of preparing the visa application in issue before the Tribunal. I accept the first respondent’s submissions that the applicant did so in order to “take advantage of the effect of the advice” by way of explanation as to why the claims in his written visa application were incomplete.
In the circumstances, the applicant’s conduct was inconsistent with the maintenance of legal professional privilege and the privilege was therefore waived by implication.
Moreover, in circumstances where the Tribunal was providing the applicant with an opportunity to explain a concern expressed by the Tribunal as to the failure of the applicant to include all his claims in his written Protection Visa application, any failure by the Tribunal to warn the applicant that he could claim legal professional privilege did not deprive the applicant of a favourable outcome. In such circumstances, any such failure by the Tribunal was not material and therefore does not demonstrate jurisdictional error (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ, [72] per Edelman J; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [44]- [46], [49] per Bell, Gageler and Keane JJ).
Accordingly, Ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 9 March 2020