BZACF and Anor v Minister for Immigration and Anor - [2013] FMCA 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZACF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 198

MIGRATION — Refusal of a Protection (Class XA) visa — Refugee Review Tribunal — Whether consideration given to corroborative evidence by tribunal — Whether consideration given to corroborative evidence by tribunal where assessment of credit made against applicant.

MIGRATION — Refusal of a Protection (Class XA) visa — Whether tribunal should have made an obvious inquiry about authenticity of documents.

MIGRATION — refusal of a Protection (Class XA) visa — information for which the Tribunal must give particulars when affirming a decision under review — information given for the purposes of an application — whether an inference of delay in bring claim for protection visa drawn from information given in application documents is classified as information under s 424A(3)(b) of the Migration Act 1958 (Cth).

MIGRATION — Refusal of a Protection (Class XA) visa — whether tribunal complied with requirement to invite applicant to give evidence and present arguments — whether denial of procedural fairness — alleged repetitive questioning.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(1)(a), 424A(1)(b), 424A(1)(c), 424A(3)(ba), 425, 476

Antipova v Minister for immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480
Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294
Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal and Another; Ex parte H (2001) 179 ALR 425
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113
SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751
SZNFP v Minister for Immigration [2009] FMCA 305
SZOMT v Minister for Immigration and Citizenship [2011] FMCA 3
SZQVL v Minister for Immigration and Citizenship [2012] FMCA 339
WAJR v Minister for immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624

First Applicant:

BZACF

Second Applicant:

BZACG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 356 of 2012

Judgment of:

Jarrett FM

Hearing date:

5 September 2012

Date of Last Submission:

5 September 2012

Delivered at:

Brisbane

Delivered on:

22 March 2013

REPRESENTATION

Counsel for the Applicants:

Mr Black

Solicitors for the Applicants:

Irish Bentley Lawyers

Counsel for the first Respondent:

Ms O’Connor

Solicitors for the first Respondent:

Clayton Utz

The second Respondent entered a submitting appearance

ORDERS

The application filed 27 April 2012 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 356 of 2012

BZACF

First Applicant

BZACG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In 2011 the applicants applied to the Minister for Immigration and Citizenship for protection visas under the Migration Act1958. The Minister’s delegate refused to grant those visas. The applicants sought review of that decision by a refugee review tribunal.
By a decision made in March, 2012 the Tribunal decided to affirm the decision to refuse to grant protection visas to the applicants.
By their amended application filed in this Court, the applicants seek a review of the Tribunal’s decision pursuant to this Court’s jurisdiction under s.476 of the Migration Act.
There is no dispute between the parties that in the event that the Court is satisfied that the Tribunal’s decision is attended by jurisdictional error, this Court might grant relief in respect of the decision. If it is not so satisfied, the decision is a privative clause decision for the purposes of the Migration Act, in respect of which this Court cannot interfere.
The applicants argue that the Tribunal’s decision is affected by jurisdictional error because:
a)the Tribunal failed to properly consider certain documentary evidence submitted by the Applicants;
b)the Tribunal failed to observe its duty to review the decision before it by not making obvious inquiries about critical facts, which could have been easily ascertained;
c)the Tribunal failed to comply with s.424A(1) of the Migration Act; and
d)the Tribunal failed to provide the Applicants with a real and meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Background

The applicants are citizens of Nepal who arrived in Australia on 1 August, 2008 on Student (Class TU) (subclass 572) visas, which were granted on 3 June, 2008 and which were valid until 2 December, 2010.
The applicants lodged an application for Protection (Class XA) visas on 23 February, 2011. The second applicant applied as a member of the first applicant’s family unit, but did not submit any protection claims of her own.
A delegate of the Minister refused to grant Protection (Class XA) visas to the applicants on 25 August, 2011 and sent a letter notifying the applicants of that decision on the same day.
On 2 September, 2011 the applicants applied to a refugee review tribunal for review of the delegate’s decision.
On 14 November, 2011 the applicants appeared before the Tribunal to give evidence and present arguments, but the hearing was adjourned to another day because an interpreter was needed, but was not then present. On 29 November, 2011 the applicants appeared before the Tribunal again to give evidence and present arguments by video link. The hearing was held with the assistance of an interpreter in the Nepali and English languages.
On 23 March, 2012 the Tribunal affirmed the delegate’s decision not to grant the applicants Protection (Class XA) visas. The applicants filed an application for review of the Tribunal’s decision in this Court on 27 April, 2012 and an amended application on 17 July, 2012.

The First Applicant’s claims before the Tribunal

Before the Tribunal, the First Applicant’s claims included that:
a)His father had been killed by Maoists, although he had no proof of this.
b)He was a member of the Rastriya Prajatantra Party (the RPP);
c)The Maoists used to come to his house or school and pressure him to join them, saying that he would be in danger if he refused;
d)The Maoists had attacked him at a soccer game in 2008, although he was not seriously injured.
e)His younger brother had left Nepal and gone to Malaysia in 2003/2004 due to pressure from the Maoists;
f)His brother-in-law (his sister’s husband) had been killed by Maoists in about June or July 2006; and
g)He fears that if he returns to Nepal he will be captured and physically abused or killed by the Maoists because he has refused to join them.
The second applicant did not make any separate claims to protection of her own.
The Tribunal did not accept the applicants’ claims. It was not satisfied that the applicants were persons to whom Australia owed protection obligations, and it affirmed the Minister’s decision to not grant visas to the applicants.

Ground 1 – Failure to properly consider the documentary evidence submitted by the applicants

In support of their claim, the applicants relied upon certain documents that they supplied to the Tribunal at the first hearing conducted by the Tribunal on 14 November, 2011, namely:
a)A certified translation of a letter from Ashok Thapa, President, Rastriya Prajatantra Party (the RPP), Central Office, Kathmandu dated 2064/12/30 BS (12/04/2008 AD).
b)A certified translation of a letter from Netra Prasad Sharma, His Majesty’s Government, Ministry of Home Affairs, District Administration Office, Tamghas, Gulmi dated 2063/04/10 BS (26/07/2006 AD).
c)A certified translation of an identity card from the RPP, Kathmandu, Nepal in the first applicant’s name, issued 2060/09/25 BS (09/01/2004 AD).
d)A copy of a letter from RB Adhikari, Human Resources Manager, Soaltee Crowne Plaza Kathmandu, dated 21 July 2008.
The applicants argue that each of the above documents was capable of corroborating critical facts relating to the first applicant’s claims, namely that:
a)the first applicant was a member of the RPP.
b)there had been pressure or threats from Maoists against the first applicant and his family.
c)the first applicant’s brother-in-law had been murdered by Maoists.
However, instead of considering the documents carefully and assessing the weight to be given to them, the applicants argue that the Tribunal decided:
a)Firstly, that the first applicant was not a credible witness; and
b)Secondly, that for that reason, the documents should be given no consideration.
Both the applicants and the Minister accept that it is permissible for the Tribunal to make findings regarding the credibility of an applicant before considering the weight to be accorded to any allegedly corroborative evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. The Minister argues that it is not irrational for a tribunal, having decided that an applicant has been untruthful, to assess the weight to be given to allegedly corroborative material and then to give no weight to that evidence. The applicants do not contend to the contrary.
The parties agree that there will be jurisdictional error if, after making an adverse credibility finding against an applicant, a tribunal simply refuses to consider corroborative evidence. Whilst there is no jurisdictional error in giving otherwise probative evidence little or no weight (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611), the question raised by the applicants here, is whether the Tribunal gave the relevant documents any consideration. If it has failed to do so, it has committed a reviewable error.
In Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294 the Full Federal Court discussed the principles applicable where a tribunal assesses credibility of an applicant and corroborative evidence. North and Lander JJ emphasised at [37] that Applicant S20 “does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration”. Their Honours said:
[38] The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20 (2002) 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence ....
[39] On the other hand it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
Thus, although it is permissible for the Tribunal to assess a visa applicant’s credibility before considering corroborative evidence, the Tribunal must not simply disregard corroborative evidence without assessing it and weighing it in the balance.
The applicants argue that the Tribunal decided that the first applicant and his claims were not credible and that it for that reason, did not consider at all, the documents to which I have earlier referred. The Minister argues that the Tribunal’s decision record does not support a conclusion that the Tribunal refused to consider the documents identified earlier in these reasons, although the Minister’s submissions seem to accept that the Tribunal assessed the first applicant’s credibility first and then turned to consider the allegedly corroborative documents.
The Tribunal found that the first applicant’s claims were not credible. Commencing at paragraph 97 of its reasons for decision, the Tribunal set out comprehensive reasons for rejecting the first applicant’s claims based upon his credibility. The Tribunal set out a catalogue of inconsistencies relating to the claims made by the first applicant. None of those findings are now challenged (nor could they be) in these proceedings.
At paragraphs [99]-[114] of the Tribunal’s decision record, the following reasons for rejecting the first applicant’s claims are set out:
a)the first applicant gave inconsistent evidence about his claimed involvement with the RPP and the reasons he said that he and his family were targeted by the Maoists;
b)the first applicant gave inconsistent evidence about the circumstances in which he claims his brother-in-law was killed;
c)the first applicant gave inconsistent evidence about when he became aware of his brother-in-law’s death;
d)the first applicant gave inconsistent evidence about the letter he claimed his sister received from the Maoists claiming responsibility for her husband's death; and
e)the first applicant gave inconsistent evidence about his brother who is now living in Dubai.
In the course of discussing the first applicant’s claims, the Tribunal said, at paragraph 98 of the decision record:
The Tribunal does not accept as genuine the documents the first named applicant submitted, including those purportedly from the RRP, The Ministry of Home Affairs and Soaltee Crowne Plaza Kathmandu in light of the Tribunal’s findings on the truthfulness of the first named applicant’s claims, and as discussed during the hearing, the fact that fraudulent documentation is readily available in Nepal.
Later, at paragraph 103 of the decision record, the Tribunal said:
…The Tribunal finds that the first applicant has fabricated his and his family’s connection with the RRP for the purpose of strengthening his protection visa application. As such, the Tribunal does not accept as genuine the documents the first named applicant submitted that he claims were issued by the RRP. These include the letter dated 12 April, 2008 and the identity card.
And later again, at paragraph 107, the Tribunal said:
In response to the Tribunal’s letter of 24 February 2012, the first named applicant stated that the reason he had not mentioned his brother-in-law’s connection with the RPP was because he was not asked and then stated that he had told the delegate during the interview that the connection. He did not. The Tribunal does not accept the first named applicant's explanation. In the Tribunal's view, if the killing of the first named applicant's brother-in-law was connected in any way with his support for the RPP, the first named applicant would have made this claim in the protection visa application, in the interview with the delegate or in evidence to the Tribunal. He did not. In fact he stated that his sister received a letter from the Maoists taking responsibility for the killing because her husband refused to join them. The Tribunal finds that the first named applicant has fabricated his brother-in-law's connection with the RPP for the purpose of strengthening the protection visa application. As such, the Tribunal does not accept as genuine the document submitted from the Ministry of Home Affairs, District Administration Office.
And yet later still, the Tribunal records at paragraph 111:
111. On the basis of these inconsistencies and omissions, the Tribunal not accept that the first named applicant's brother-in-law was killed as claimed, that he was murdered by the Maoists, the YCL or anyone else because of a refusal to join the Maoists or because of any connection he or his family had with the RPP. The Tribunal finds that the letter purportedly from the Ministry of Home Affairs, District Administration Office about the murder is not a genuine document. In the Tribunal's view, the first named applicant has fabricated this claim to strengthen the protection visa application.
Finally, the Tribunal determined at paragraph 116 of the decision record:
116. Overall, when the serious inconsistencies and omissions set out above are considered together with the considerable delay in making the application after arrival in Australia, the Tribunal finds that the first named applicant is not a witness of truth and has not given a truthful account of his circumstances in Nepal, his reasons for leaving and his claimed fear of harm if he were to return to Nepal now or in the reasonably foreseeable future. As the Tribunal has found that the first named applicant is not a witness of truth, the documents he has submitted from his mother-in-law and those submitted to the Tribunal, including those from the RPP, the Ministry of Home Affairs and the Soaltee Crowne Plaza, cannot assist him, and the Tribunal gives them no weight. Also, the Tribunal does not accept as genuine the documents that were submitted to the Tribunal at the first hearing on 14 November 2011, given the availability of fraudulent documents from Nepal and that these were not provided to the Department.
The applicants argue that the last quoted passage describes a process by which the Tribunal made the very jurisdictional error warned against by the Full Court in SZNSP: and that is, after making an adverse credibility finding, it simply refused to consider the corroborative evidence proffered in support of the first applicant’s case.
The applicants argue that the phrase “in light of” should be read as meaning “by reason of” or “because”. In other words, the Tribunal has found that the documents were not genuine because of the two stated reasons: the first applicant’s lack of credibility, and the ready availability of fraudulent documentation in Nepal.
The applicants submit that in reaching this finding about the documents not being genuine, the Tribunal has not:
a)considered the “nature, content and quality” of the documents;
b)examined and considered each of the documents on its face and in context;
c)assessed and weighed in the balance with all the other evidence.
Instead, the applicants submit, the Tribunal has simply refused to consider the documents, as exemplified by its statement that the documents “cannot assist” the applicants.
However, in my view, on a proper reading of the Tribunal’s decision record, it has considered each of the documents in the context in which the first applicant had sought to rely upon them. For example, the Tribunal rejected the claims made by the first applicant about his, and his family’s connection to the RRP. The reasons given for rejecting that claim were open to the Tribunal: his claimed connection with the Tribunal directly contradicted his earlier statement to the Minister’s Department that he had never joined any political party or undertook any political activities. The Tribunal determined that it did not believe that the first applicant had such a connection and because the Tribunal was satisfied that non-genuine documents were easily obtained in Nepal, it placed no weight upon the allegedly corroborative material.
The Minister points out that as in SZNSP, the corroborative evidence relied upon by the first applicant was not corroborative evidence in the sense that it was not independent of the applicants. It was presented to the Tribunal by the first applicant, a person whom the Tribunal thought was fabricating his claims. I accept that submission.

In my view, the Tribunal has undertaken the task asked of it and identified in paragraph [39] of SZNSP set out above. It has assessed all of the evidence together. I do not think that paragraph 116 of the Tribunal’s reasons ought to be construed as the applicants would have them construed. That paragraph summarises the considerations undertaken by the Tribunal in the earlier paragraphs of the decision record in respect of the applicants’ claims and the documents said to be corroborative of those claims.
In my view, this ground of review fails.

Ground 2 – Failure to make obvious inquiries about critical facts

To find that a document is fraudulent is a strong finding. There must be a proper foundation before a tribunal makes a positive finding that documents are contrived or fraudulent, including a careful examination and consideration of the document on its face and in context: Applicant M164/2002 v Minister for Immigration & Multicultural [2006] FCAFC 16.
The Tribunal “did not accept as genuine” the documents set out above and relied upon by the applicants in their claim. I accept that this amounts to a finding by the Tribunal that the documents were contrived or fraudulent. The Minister does not contend to the contrary.
As set out above, the documents included a letter and identity card from the RPP, a letter from the Nepalese Department of Home Affairs, and a letter from the Soaltee Crowne Plaza Kathmandu. In its reasons, the Tribunal recognised the official existence of the RPP. I accept the applicants’ contentions that the Ministry of Home Affairs and the Soaltee Crowne Plaza were, prima facie, formal entities.
The applicants submit that the authenticity of these documents could easily have been ascertained by the Tribunal making an enquiry with the relevant organisation (or requesting the Minister’s Department to inquire and report). Even if this might have involved some effort, it was argued that it would not have been an unreasonable task. However, despite the apparent ease with which inquiries might have been made, the applicants argue that the Tribunal did not make any inquiries as to the authenticity of the documents. And clearly enough, it did not.
The applicants contend that the Tribunal ought to have made its own inquires or directed the making of enquiries because:
a)The Tribunal could easily have tested the authenticity of the documents by making inquiries;
b)There is a public interest in ascertaining whether a visa applicant has in fact provided forged documentation (cf. Applicant M164 at [65]);
c)The Tribunal did not conduct its own assessment of the documents, but instead rejected their authenticity based on a credibility finding in relation to the applicants;
d)If the documents were authentic, that fact could have seriously affected the Tribunal’s assessment of the applicants’ credibility; and
e)The potential impact on the assessment of credibility was intrinsically linked to the outcome of the Tribunal’s review, because the Tribunal rejected the applicants’ claims on the basis of its assessment of their credibility.
The applicants submit that in those circumstances, the Tribunal’s duty to review the delegate’s decision miscarried because of its failure to make inquiries about the authenticity of the documents.
Whilst the parties agree that the Tribunal was under no general duty to inquire into the applicants’ claims or the documents relied upon by them to support their claims, the applicants submit that in the particular circumstances of this case the Tribunal’s obligation to review the delegate’s decision necessitated it undertaking its own inquiries as to the authenticity of the documents: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
In support of their argument, the applicants point to Applicant M164/2002 v Minister for Immigration & Multicultural (above) and in particular that which appears at paragraphs [75], [76], [86] and [90] of Lee J’s judgment (with whom Tablerlin J agreed):
[75] Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.
[76] If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
…
[86] Putting to one side that, as discussed earlier in these reasons, the foregoing findings may have misstated part of the appellant’s claims in some degree, the matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described by the appellant did not happen. The Tribunal may not have been persuaded that events occurred as claimed but it had no material on which it could convert such a doubt into a positive finding that the events had not occurred. The Tribunal, therefore, was bound to examine and deal with the documents and justify by appropriate findings of fact and reasoning therefrom its treatment of the material.
...
[90] However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function.
However, as the Minister points out, those paragraphs need to be seen in context. In paragraph [89] of his judgment, Lee J said:
[89] In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]–[85]).
(my emphasis)
That part of the above passage that I have emphasised serves to distinguish Applicant M164 from the present case. Here the Tribunal did find, on proper grounds, that the substantive claims of the first applicant were untruthful. If they are untruthful, they are dishonestly made.
The applicants also point to SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113, where Logan J applied the approach envisaged in SZIAI and concluded that it was “one of those exceptional cases” where the Tribunal had constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical fact. However, for the same reasons that Applicant M164 can be distinguished from the present case, so too can SZLGP. In the latter case, there was no finding of dishonesty or untruthfulness on the part of the applicant. The Tribunal in that case found the applicant’s implausible, which as Tamberlin J points out in Applicant M164, is different to a positive finding against the visa applicant’s claims (at [111]).
This was not a case where the Tribunal was obliged to exercise its discretion to initiate inquiries into the authenticity of the relevant documents. The Tribunal had concluded in clear terms that the first applicant’s claims were untruthful and that many of his claims were fabricated to strengthen his prospects of being granted a protection visa. In those circumstances, this ground of review must fail.

Ground 3 – Failure to comply with the requirements of section 424A of the Act

Section 424A(1) of the Act imposed the following requirements on the Tribunal:
a)It required the Tribunal to give the applicants 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: s 424A(1)(a).
b)It required the Tribunal to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review: s.424A(1)(b).
c)It required the Tribunal to invite the applicant to comment on or respond to the information: s 424A(1)(c).
By letter dated 24 February, 2012 the Tribunal wrote to the applicants and said:
In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
…
Overall, when the information set out above is considered together with other inconsistencies in the evidence and the considerable delay in making the application after your arrival in Australia, it may lead the Tribunal to find that you have not given a truthful account of your circumstances in Nepal, your reasons for leaving and your claimed fear of harm if you were to return to Nepal now or in the reasonably foreseeable future...
The applicants submit that, on a fair reading of the Tribunal’s statement of reasons, part of the reason for the Tribunal affirming the decision under review was that there had been “a delay of more than 2 1/2 years after arriving in Australia” before the applicants applied for protection visas. The Tribunal said that this “considerable delay” was one of the reasons for finding that the first applicant was not a “witness of truth”. The Minister accepts that proposition.
The applicants submit that the Tribunal letter:
a)Failed to give the applicants clear particulars of the “delay” which was a part of the reason for Tribunal affirming the decision under review;
b)Failed to ensure “as far as is reasonably practicable” that the applicants understood why the issue of delay was relevant to the review, and the consequences of it being relied on in affirming the decision under review; and
c)Failed to invite the applicants to comment on the issue of delay.
The applicants submit that the Tribunal has fallen into jurisdictional error by failing to comply with s 424A of the Act.
However, the applicants argument must fail for two reasons:
a)First, the “delay” spoken of by the Tribunal in its reasons is not “information” for the purposes of s.424(1)(a): SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [26] – [29]. The period of delay in applying for a protection visa was a deduction drawn from other facts (the date of the applicants’ arrival in Australia, the date of expiry of their student visas and the date of their application for a protection visa) which were, of themselves, neutral.
b)Secondly, the facts from which the relevant deduction of delay has been drawn were facts that were stated in written material submitted by the applicants with their protection visa application. Written information given to the Minister’s department for the purpose of the protection visa applications falls within the exemption in s.424A(3)(ba) of the Act: SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751 at [22]; SZQVL v Minister for Immigration and Citizenship [2012] FMCA 339 at [42]; SZOMT v Minister for Immigration and Citizenship [2011] FMCA 3 at [26]; SZNFP v Minister for Immigration [2009] FMCA 305 at [24].
In my view, the Tribunal was under no obligation to put the applicants’ delay in applying for a protection visa to them for their comment pursuant to s.424A(1). This ground of review fails.

Failure to provide a real and meaningful hearing

The parties agree that s.425 of the Migration Act, obliges the Tribunal to afford the applicant a real and meaningful opportunity to be heard. The hearing conducted by the Tribunal must afford the visa applicant a real and meaningful opportunity to give that evidence and present the arguments, he she or they wish to put: WAJR v Minister for immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 esp. at [58].
Both parties also agree that in some circumstances, the manner in which a tribunal conducts its hearing may amount to a breach of the obligation to afford an applicant a real and meaningful opportunity to put their case.
For example, in Antipova v Minister for immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480, Gray J held at [85], that a migration review tribunal had not complied with its obligation to provide the applicant with a “real and meaningful” hearing “because it interrupted her and imposed an arbitrary time limit on her” with the result that it “did not permit [the applicant] to give evidence and present arguments as she wished to do”.
In the present case, the applicants complain that the Tribunal breached the obligation cast upon it by s.425 of the Migration Act because the Tribunal’s approach produced unfairness. The example relied upon relates to the Tribunal’s questioning of the first applicant about the death of his brother-in-law. The first applicant gave evidence that his brother-in-law had been murdered by persons associated with the Maoists. In an earlier departmental interview, the first applicant had referred to the brother-in-law being found dead on a bus on the way home from work but during the Tribunal hearing he said:
I mean he went for the shopping - some shopping, left the home, but when he was back to the home from the town bus, and then he found killed in the bus.
Later, when the Tribunal asked whether the brother-in-law was working, the first applicant said:
He wasn’t doing any service but he had a bit of land and he was doing some farming.
This prompted the following exchange:
[Tribunal Member]: Okay. So why would you tell the Department that he was coming home from work when this happened?
[first applicant]: I did not mean to say that. I meant to say that he was coming back from some kind of shopping walk or something. It wasn’t clear, that’s why that’s a mistake.
As the applicants point out, all of this is unremarkable. The Tribunal then proceeded to put to the first applicant that he told the department that his brother-in-law was coming home from work. Despite having already obtained the first applicant’s answer, the Tribunal’s subsequent “questions” (at page 21 of the Transcript) included:
Right. you told the Department though, he was working. Well you said, actually, that he was coming home from work. Was he working?
…
Okay, well, you told the Department that he was on his way home from work and was found dead on the bus.
…
Okay. In your statement that you wrote in your application form you said he was found dead on a bus when returning home from work.
In response to that last question, the first applicant said:
I did mention it as like in Australian culture it says that the work is the particular work and it ‘s nine to five, but in our words that if we have any work, then we say that we finish that work so in that way, that I meant to say that he was coming back from work.
The Tribunal then commented:
I don’t find that particularly credible.
The Minister concedes that there is some repetition in the questions at page 21 of the transcript, because the Tribunal appears to be trying to clarify what the first applicant meant by his seemingly inconsistent statements made to the department and the Tribunal about the circumstances in which his brother-in-law was allegedly killed.
However, I agree with the Minister’s submissions that there is nothing to suggest that the first applicant was unable to put his evidence to the Tribunal in the way he wanted, or that he was “overborne or intimidated” by the Tribunal’s questioning.
Repeated questioning does not in itself amount to procedural unfairness. In my view, there was nothing unduly repetitive or oppressive about the question put by the Tribunal to the first applicant. The Tribunal is entitled to test an applicant’s claims in a robust way. I was taken to nothing in the transcript which fell from the first applicant or his advisor that suggests that he felt unduly harassed or intimidated by the process.
The facts in the present matter are quite different to the facts in cases such as Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (above) and Re Refugee Review Tribunal and Another; Ex parte H (2001) 179 ALR 425. And as each of those cases demonstrate, each matter needs to be determined according to its own facts.
In my view, this ground of review fails.

Conclusion

None of the grounds of review have been made out.
The application must be dismissed with costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 22 March 2013