CCS23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 453
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCS23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 453
File number: PEG 178 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Department failed to invite the applicant to attend an interview – whether the Tribunal failed to provide the applicant with an opportunity to provide information – whether the Tribunal failed to comply with the guidelines set out in The United Nations High Commissioner for Refugees’ “Handbook on Procedures and Criteria for Determining Refugee Status” – whether the Tribunal failed to consider relevant information – whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5J-5LA, 36, 359, 363A, 424, 424C, 425, 476, 499 and Part 5 and Part 7 Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 29 April 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 178 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCS23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 27 & 51). He arrived in Australia in May 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 56).
On 9 June 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 14-50 & 56). The applicant provided a copy of his Malaysian passport with his visa application (CB 51). In that visa application, the applicant claimed that he had intended to join a “legal privacy party” but was imprisoned by Malaysian police for attending an “illegal gathering”. The applicant further claimed that he was asked questions that he did not understand and was “attack[ed] with dangerous weapon[s]”. The applicant also claimed that he did not know “what to do next” and felt that, if he moved to other parts of Malaysia, “the result could be [the] same” (CB 45-47).
On 25 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 56-64). The delegate cited country information which indicated that, while political opposition and dissent may result in harassment, detention or prosecution, the instances were limited to high profile political opponents. The delegate considered that, because the applicant was able to obtain a passport and depart Malaysia “without hindrance from the authorities”, the applicant did not appear to have a political profile and was “not of adverse interest to the Malaysian authorities”. On that basis, the delegate was satisfied that the applicant was not at risk of harm (from Malaysian authorities or anyone else) for reasons of his political activities (CB 58).
On 2 September 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 65-67).
On 17 November 2022, the applicant provided the Tribunal with a completed “Change of Contact Details” form and asked the Tribunal to update his contact details (including his email address) (CB 77-79).
On 20 January 2023, the Tribunal invited the applicant to provide additional information to it by completing an attached “Applicant information form (s.424(2) response)” form (the “information form”) (CB 82-84). The Tribunal asked the applicant to provide his response (or seek an extension of time within which to respond) by 3 February 2023 (CB 83).
On 8 February 2023, the applicant returned the completed information form to the Tribunal (via email) (CB 85-90). In that information form, the applicant provided the following additional information (without alteration) (CB 88-89):
I came to Australia as I have my own political opinion, and I was persecuted by the Malaysian authority. Please give me two months, and I am arranging more evidence to support my claim. Thank you.
…
I am preparing the claim, and I will add more details about the activities I took in Malaysia.
On 14 July 2023, the Tribunal invited the applicant to attend a hearing before it (by video link) on 3 August 2023 (CB 91-94).
On 3 August 2023, the applicant attended a hearing before the Tribunal (CB 100-103). He was assisted at that hearing by a Mandarin interpreter (CB 100).
On 5 August 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 106-116).
On 23 August 2023, the applicant lodged an application for judicial review and supporting affidavit in this Court (CB 1-13). That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 11 pages long and spans 34 paragraphs (CB 106-116). The final three pages include extracts of relevant legislative provisions (CB 114-116).
The Tribunal began by explaining that the applicant, who arrived in Australia in May 2017 as the holder of a visitor visa, applied for the visa the subject of the review on 9 June 2017 and that the Minister’s delegate had refused to grant the applicant the visa on 25 August 2017. The Tribunal outlined the applicant’s protection claims (included in his visa application) and noted that the Minister’s delegate was not satisfied that there was a real risk the applicant would suffer harm if returned to Malaysia. The Tribunal noted that the applicant had sought review of the delegate’s decision and that the applicant was not represented in relation to that review (at [1]-[8]).
The Tribunal outlined the materials before it and confirmed that it had had regard to the Department of Foreign Affairs and Trade (“DFAT”) “DFAT Country Information Report Malaysia” (the “DFAT Report”). The Tribunal also outlined that the applicant had appeared before it to give evidence and present arguments and that the applicant was assisted the hearing by an interpreter in the Mandarin and English languages (at [9]-[11]).
The Tribunal summarised the applicant’s oral evidence, as follows (at [12]):
(a)the applicant completed the visa application forms himself;
(b)he is an only child, his parents are resident in Malaysia and the applicant has never been married, has no children and has no family in Australia;
(c)the applicant travelled to Australia because, at the time in Malaysia, “Chinese people” were discriminated against in favour of native Malays;
(d)he was a member of a group led by “Brother Jau” which was established for “Chinese people”. The applicant explained that the group comprised of 30 to 40 people and that, when the government began looking at the group, the police made enquiries about where he lived. The applicant also told the Tribunal that “Brother Jau” was “arrested and put away”; and
(e)the applicant told the Tribunal that he feared returning to Malaysia because “he was concerned that ‘they’ would still try to find him because they ‘go’ to his parents’ place and ask after him”. The applicant also told the Tribunal that he was “very worried” that he would be “detained, punished and ‘tortured’” if he were to return to Malaysia.
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT (at [13]-[18]).
The Tribunal outlined the relevant authorities regarding making credibility findings about an applicant and noted, in particular, that it accepted that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt” (citing The United Nations High Commissioner for Refugees’ “Handbook on Procedures and Criteria for Determining Refugee Status” (the “UNHCR Handbook”) (at [19]-[21]).
The Tribunal continued:
24.Overall, the Tribunal found the applicant’s evidence concerning his claims for protection to be vague and unpersuasive. He provided no evidence to corroborate his claims, and, when pressed for detail by the Tribunal regarding his claimed membership of a group under the leadership of “Brother Jau”, and his activities as a member, his answers were superficial.
The Tribunal set out relevant extracts from the DFAT Report regarding “Chinese Malaysians” and noted that there was “no country information to suggest that Malays of Chinese ethnicity are targeted by Malaysian government authorities” and, on that basis, the Tribunal did not find the applicant’s claims in that regard to be credible. Overall, the Tribunal found the applicant’s claims to fear persecution on the basis of his Chinese ethnicity to be “unsupported by the evidence and inconsistent with the country information” (at [25]-[27]).
Accordingly, the Tribunal found that there was no real chance or real risk that the applicant would “be arrested, prosecuted, or imprisoned in Malaysia”. Nor that he would face serious or significant harm based upon his Chinese ethnicity (at [28]).
For the reasons above, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act (at [31]-[32]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [34]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 23 August 2023 contains three grounds of review as follows (without alteration) (CB 4-5):
1.The First Respondent did not allow me to attend the interview. I unfairly lost the opportunity to provide all the details of my protection claims. By s5J(1)(a) of the Act, the First Respondent confirmed that I fear persecution for reasons of my political opinion. I deserve a chance to provide additional information relating to my claim, but the First Respondent did not invite me to attend the interview.
2.The Second Respondent should have invited me to provide more information after the hearing. I thought Second Respondent would contact me, and I planned to give further information and evidence to support my answers in the hearing. The Second Respondent directly refused me.
3.“In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” (The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at para 196). The First Respondent and the Second Respondent failed to comply with the Handbook and ignored that I should be given the benefit of the doubt.
The applicant also filed an affidavit with his judicial review application. In that affidavit, the applicant included information about his protection claims (largely mirroring his claims before the Tribunal) (CB 9-13).
On 24 November 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 23 August 2023, a Court Book numbering 118 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 12 April 2024.
The applicant appeared before this Court without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant stated that the Tribunal “simply just declined [his] visa application” and that he felt as though “they did not look at all of the materials [he] submitted”. When asked what materials he thought the Tribunal had overlooked, the applicant told the Court that, when he was in Malaysia, he “joined the opposition party and for that reason [he] was threatened and for that reason [he] came to Australia”.
The applicant also stressed that, if he were to return to Malaysia, he would be threatened and he was “really scared of the threats”. The applicant explained that in Malaysia, Malay is the dominant group and the Chinese community (in Malaysia) “does not enjoy the same treatment as the Malay community”. The applicant maintained that, if he were returned to Malaysia and was “caught by the authorities”, the police would not make a decision favourable to him because, in Malaysia, “money equals power” and the applicant is “from a very ordinary family and does not have the money”.
The applicant’s oral submissions, to the extent that they relate to the Tribunal’s failure to consider the applicant’s materials, will be addressed below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one states:
1.The First Respondent did not allow me to attend the interview. I unfairly lost the opportunity to provide all the details of my protection claims. By s5J(1)(a) of the Act, the First Respondent confirmed that I fear persecution for reasons of my political opinion. I deserve a chance to provide additional information relating to my claim, but the First Respondent did not invite me to attend the interview.
Ground one relates to a failure by the Department to invite the applicant to attend an interview. To the extent that the applicant raises concerns with the conduct of or the decision made by a delegate of the Minister, this Court has no jurisdiction to review that decision: ss 476(2) and (4) of the Act. Further, the Tribunal’s decision “cures” any error in the delegate’s decision.
No jurisdictional error arises in this regard.
Ground two
Ground two provides:
2.The Second Respondent should have invited me to provide more information after the hearing. I thought Second Respondent would contact me, and I planned to give further information and evidence to support my answers in the hearing. The Second Respondent directly refused me.
By ground two, the applicant essentially asserts that he was not given an opportunity to provide information to the Tribunal in support of his application.
The Court disagrees for the reasons that follow.
As outlined above, on 20 January 2023, the Tribunal invited the applicant to provide additional information to it by completing an attached information form (CB 82-84). The Tribunal asked the applicant to provide a response (or seek an extension of time within which to respond) by 3 February 2023 (CB 83).
That correspondence also put the applicant on notice that failing to provide the requested information within the time period allowed (or as extended) would result in the applicant losing any entitlement he may otherwise have had under the Act to appear before the Tribunal at a hearing (CB 83-84).
The applicant did not provide a response (or seek an extension of time within which to respond) by the due date of 3 February 2023.
On 8 February 2023, the applicant returned the completed information form to the Tribunal (via email) (CB 85-90). In that information form, the applicant provided the following additional information (without alteration) (CB 88-89):
I came to Australia as I have my own political opinion, and I was persecuted by the Malaysian authority. Please give me two months, and I am arranging more evidence to support my claim. Thank you.
…
I am preparing the claim, and I will add more details about the activities I took in Malaysia.
As is evidenced above, the applicant asked the Tribunal to allow him an additional two months to provide more evidence in support of his claim. No further evidence was provided.
On 14 July 2023, the Tribunal invited the applicant to attend a hearing before it (by video link) on 3 August 2023 (CB 91-94).
The Tribunal’s hearing invitation put the applicant on notice that the Tribunal had “considered the material before [it]” and was “unable to make a favourable decision” based on that information alone (CB 92). The invitation letter also provided the applicant with a further opportunity to provide any additional evidence in support of his case. Relevantly, the hearing invitation letter stated (CB 93):
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 27 July 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
On 26 July 2023, the applicant sent an email to the Tribunal attaching a completed “Response to hearing invitation” form (CB 95-98). In that form, in response to whether the applicant “intend[ed] to rely on any documents a the hearing”, the applicant selected “yes”. The Court notes that the form also asks applicant to “outline the documents” and to “send … a copy of the documents [to the Tribunal] at least seven days before the hearing” (CB 97).
The applicant did not provide any documents to the Tribunal but did provided the following information in response (CB 97):
Amnesty International’s report revealed that Malaysian authorities continued to use repressive laws to silence critical voices.
The applicant did not otherwise provide any additional material or evidence to the Tribunal (either prior to or at the hearing on 3 August 2023). There is also no evidence before the Court to suggest that the applicant asked the Tribunal for additional time to provide any further materials or that he was denied an opportunity to do so.
The applicant attended that hearing before the Tribunal on 3 August 2023 (CB 100-103). He was assisted at the hearing by a Mandarin interpreter (CB 100).
The Tribunal recorded that it “pressed the applicant” for further information in relation to his claims and had regard to the applicant’s responses (at [12] in its written reasons).
As correctly submitted by the Minister (at [36] in written submissions filed in this Court on 12 April 2024), the dispositive issue in this matter was whether the applicant had a well-founded fear of persecution in Malaysia or whether the applicant’s circumstances were such that there was a real risk that he would suffer significant harm if returned to Malaysia. This was the same issue as that which was before the Minister’s delegate for consideration. The applicant was thus on notice of the determinative issue in his matter from as early as 25 August 2017 (being the date of the delegate’s decision in this matter) and no error of the sort identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this case.
Further, the Tribunal is not required to investigate or conduct any inquiry to discover whether an applicant’s case could be better articulated or supported by additional or alternate evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
The Court notes that the applicant foreshadowed providing further evidence in his completed information form which he submitted to the Tribunal (by email) on 8 February 2023. He also asked the Tribunal to give him two months within which to do so. The Tribunal did not hold a hearing in this matter until 3 August 2023 and did not make its decision in this matter until 5 August 2023 (nearly six months later). For the reasons set out above, the Court is satisfied that the Tribunal gave the applicant a number of opportunities to provide further evidence in support of his case. The applicant did not avail himself of those opportunities.
The Tribunal is under no obligation to provide the applicant with additional time after the Tribunal hearing to provide further information. There is no evidence before the Court to suggest that the applicant asked the Tribunal (at the hearing before it) for additional time to provide further information or that the Tribunal refused any such request.
No jurisdictional error arises in this regard.
Ground three
Ground three states:
3.“In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” (The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at para 196). The First Respondent and the Second Respondent failed to comply with the Handbook and ignored that I should be given the benefit of the doubt.
By ground three, the applicant raises concerns that both the Minister’s delegate and the Tribunal failed to comply with the guidelines set out in the UNHCR Handbook. In particular, the applicant claims that he ought to have been “given the benefit of the doubt”.
To the extent that the applicant takes issue with the decision made by the Minister’s delegate, this Court does not have jurisdiction in that regard (as outlined above in relation to ground one).
In so far as the applicant raises concerns that the Tribunal failed to comply with the UNHCR Handbook, the Court disagrees for the reasons that follow.
It is clear from the Tribunal’s decision that it was aware of, and had regard to, the UNHCR Handbook and its contents, as well as other relevant authorities in relation to credibility. In particular, the Tribunal stated:
19.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
20.The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
21.The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal ultimately determined as follows:
24.Overall, the Tribunal found the applicant’s evidence concerning his claims for protection to be vague and unpersuasive. He provided no evidence to corroborate his claims, and, when pressed for detail by the Tribunal regarding his claimed membership of a group under the leadership of “Brother Jau”, and his activities as a member, his answers were superficial.
As correctly submitted by the Minister (at [42] in written submissions filed in this Court on 12 April 2024), credibility findings are findings of fact par excellence, entrusted to the Tribunal: Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 at [67] (although they may involve jurisdictional error on recognised grounds, such as unreasonableness: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83], citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”) at [36]-[44]).
Here, the Tribunal’s adverse credibility findings were based upon the “vague and unpersuasive” nature of the applicant’s evidence, including a lack of corroborating evidence and his inability to provide meaningful answers when pressed for further detail, together with the inconsistency of his evidence with relevant country information (see the Tribunal’s reasons at [24]-[25]).
The Court is satisfied that the Tribunal’s findings were open to it and that the matters (set out above) presented a logical and probative basis for the conclusion that the applicant had not been truthful about his claims: CQG15 at [38].
No jurisdictional error arises in relation to ground three.
Oral submissions
As outlined above, in oral submissions before this Court, the applicant claimed that the Tribunal “did not look at all of the materials [he] submitted”. Despite being given an opportunity to do so, the applicant did not elaborate on which material he thought the Tribunal had failed to consider.
The Court notes that the only information provided by the applicant to the Department was his visa application and a copy of his Malaysian passport (CB 14-51). The only information the applicant provided to the Tribunal (aside from his completed review application form and a copy of the delegate’s decision) was the completed information form provided to him by the Tribunal (which the applicant returned to the Tribunal on 8 February 2023) (CB 85-90). Further, the information provided in that form was not “new” information. The applicant simply reiterated claims made in his visa application (namely that he would be persecuted by the Malaysian authorities because of his political opinion (CB 88)).
Whilst the applicant foreshadowed in the completed information form that he would prepare materials to provide to the Tribunal (and requested two months within which to do so), no further materials were forthcoming. As outlined above, the Tribunal gave the applicant a number of opportunities to provide additional information to it. The applicant did not do so.
The Court is satisfied that the Tribunal engaged with and had regard to all of the (limited) relevant materials before it.
No jurisdictional error arises in this regard.
Otherwise
Noting that the applicant appeared before this Court as a self-represented litigant, the Court has itself remained astute and alert to the possibility of jurisdictional error on the part of the Tribunal’s as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court has considered whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing.
The Court notes that, as outlined above, the Tribunal wrote to the applicant on 20 January 2023 inviting him to provide information pursuant to s 424(2) of the Act (CB 82-84). In that invitation letter, the Tribunal asked the applicant to provide a response (or seek an extension of time within which to respond) by 3 February 2023 (CB 83).
The invitation letter also put the applicant on notice that, a failure to provide the requested information within the period allowed (or as extended) would result in the applicant losing any entitlement he may otherwise have had under the Act to appear before the Tribunal at a hearing (CB 83-84).
As explained previously by this Court in BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176, if an applicant is invited under s 424(2) of the Act to give information but fails to do so (within the period allowed or extended), he or she may lose the right to attend a Tribunal hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
Here, the applicant did not provide the requested information (being the completed information form) to the Tribunal before 3 February 2023. The applicant also did not seek an extension of time within which to respond prior to 3 February 2023.
On 8 February 2023, the applicant returned the completed information form to the Tribunal (via email) (CB 85-90). That is, the applicant provided the completed information form after the time period allowed (being after 3 February 2023).
As a consequence of the interaction between ss 424, 424C and 425 of the Act, if an applicant fails to respond to an invitation under s 424 of the Act within the time period allowed (or does not seek an extension of time within which to respond within that period), the consequence will be to attract the cascading operation of ss 424C((1) and 425(2)(c). Ultimately, the result is that the applicant would no longer be entitled to appear before the Tribunal to present his or her case (see, generally, M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 at [25]-[31]).
However, the Court notes that there is a critical difference in the processes between Part 7 and Part 5 reviews. In a Part 5 process, if an applicant fails to comply with a request for information under s 359 of the Act (which is equivalent to s 424 of the Act in Part 7), by operation of s 363A of the Act, the Tribunal will have no discretion (nor any power) to conduct a hearing. There is no such consequence in relation to a review under Part 7 of the Act.
The Tribunal thus retains a discretion under Part 7 of the Act to schedule a hearing if it considers it necessary (though the applicant will no longer be “entitled” to attend such a hearing).
The Court also notes the comments of Driver FM (as he was then) in SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932 as follows (emphasis added):
35.…the Tribunal [acting under Part 7], unlike the Tribunal [acting under Part 5], is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non‑provision of requested information…
In this matter, the Tribunal retained its discretionary power to invite the applicant to attend a hearing and did so and the Tribunal was not required to deny the applicant the opportunity to appear at such a hearing.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 23 August 2023 have failed to identify any jurisdictional error on the part of the Tribunal. This Court is also unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2024
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