CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 616
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616
File number: PEG 185 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 12 July 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to comply with s 424A or s 425 of the Migration Act 1958 (Cth) – whether the Tribunal’s decision was irrational or legally unreasonable – whether the Tribunal failed to properly consider the complementary protection criteria – whether the Tribunal failed to engage in active consideration of the applicant’s claims when assessing complementary protection – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was affected by bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 36, 422B, 424AA, 424A, 425 & 476 and Division 4 of Part 7
Migration Regulations 1994 (Cth)
Cases cited: ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67
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
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
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
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
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 Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NABE v Minister for Immigration and Multicultural and Indigenous Affairs No. 2 [2004] FCAFC 263
Nagalingam v Minister for Immigration Local Government and Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139
Division: Division 2 General Federal Law Number of paragraphs: 141 Date of hearing: 24 June 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 185 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCU23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
12 JULY 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 India (Court Book (“CB”) 14 & 37). He first arrived in Australia in November 2008 as the holder of a student visa (applied for in June 2008 and granted whilst the applicant was offshore in October 2008). That student visa expired in May 2011 (CB 49).
On 13 March 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-36 & 49). In that application, the applicant claims that he comes “from a rich family” and that his father and uncle “own 90 acres of agricultural land worth approximately 1.8 million Australian dollars”. The applicant further claims that his uncle has political links to, and is an “active leader” of, the “biggest political party in India” – the Bharatiya Janata Party (the “BJP”). The applicant also claims that his uncle will kill him or have him “jail[ed] for life” so that he can “become the sole owner of [the] inherited property” the applicant stands to receive from his father. The applicant explains that he was “attacked by … paid goons” (arranged by his uncle) and that, during one attack, “a few men challenged [the] goons” and they ran away and, on another occasion, his uncle threw him in the canal but he was able to swim and saved himself from drowning. Finally, the applicant claims that he cannot relocate as his uncle will be able to find him with his political connections and the police and authorities simply “follow instructions of BJP politicians” (CB 31-33).
On 15 March 2017, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (CB 38-42).
On 30 January 2019, the Department asked the applicant to attend an interview at the Department’s Sydney offices on 18 February 2019 (CB 43-44).
On 18 February 2019, the applicant attended the protection visa interview. He was assisted at that interview by a Punjabi interpreter (CB 50).
On 13 March 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-58). Having considered the applicant’s protection claims, the delegate was not satisfied that the applicant or his family had been involved in a land dispute with his uncle or that the applicant’s claims (as a whole) were “genuine, credible or reflective of his true circumstances” (CB 52). As a result, the delegate was not satisfied that the applicant was a refugee (as defined by s 5H(1) of the Migration Act 1958 (Cth) (the “Act”)) and thus did not meet s 36(2)(a) of the Act. The delegate was also not satisfied that there was a real risk that the applicant would suffer significant harm if returned to India. As such, he was not a person in respect of whom Australia owed protection obligations as set out in s 36(2)(aa) of the Act (CB 53).
On 1 April 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 59-60). In that review application, the applicant provided the Tribunal with details of his registered migration agent (the “representative”) (CB 60).
On 29 August 2022, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before it on 29 September 2022 (CB 65-70).
On 19 September 2022, the applicant’s representative wrote to the Tribunal (via email) advising that the applicant would “attend [the] hearing on [the] scheduled date” and that the applicant would “provide further information during the hearing” (CB 71). That email correspondence attached written submissions and a completed “Response to hearing invitation” form (CB 72-79).
On 29 September 2022, the applicant attended the scheduled hearing before the Tribunal (CB 80-82).
At that hearing (on 29 September 2022), the Tribunal granted the applicant a further 28 days within which to provide any further information or supporting evidence (that is, until 27 October 2022) (CB 82 & 96).
No further information was provided by the applicant within the 28-day period (or at all) (CB 96).
On 4 August 2023, the Tribunal affirmed the decision refusing to grant the applicant the visa (CB 86-103).
On 31 August 2023, the applicant lodged an application for judicial review with this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of 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 18 pages long and spans 69 paragraphs (CB 86-103). The final four pages include extracts of relevant legislative provisions (CB 100-103).
The Tribunal began by explaining that the applicant (a male Indian national) arrived in Australia in November 2008 as the holder of a student visa and that he had not departed since that time. The Tribunal noted that the applicant’s student visa expired in May 2011 and that, in March 2017, the applicant applied for the protection visa the subject of the review. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa on 13 March 2019 because the delegate was not satisfied that the applicant was “a person to whom Australia ha[d] protection obligations”. The Tribunal noted that the applicant had sought review of the delegate’s decision and that he had appeared at a hearing before the Tribunal on 29 September 2022. The Tribunal noted that the applicant did not elect to have an interpreter assist him at the hearing and that the applicant had provided the Tribunal with his most recently issued Indian passport (at [1]-[6] & [18]-[19]).
The Tribunal then set out the applicant’s familial background and migration history (at [9]) and summarised the applicant’s protection claims (as outlined in his visa application), as follows (at [10]):
(a)the applicant belongs to a rich family that owns 90 acres of agricultural land worth nearly $1,800,000 AUD (owned in equal shares by the applicant’s father and uncle);
(b)the applicant described his father as being “mentally retarded” and that, following his father’s death, the applicant will become the “only legal heir” to rural and urban property and a home;
(c)the applicant’s uncle has political links with, and is an active leader within, the BJP and the applicant believes that his uncle intends to kill him to become the sole owner of the property;
(d)his uncle bullies his family and threatens to have the applicant killed “through fake police encounters”;
(e)the applicant was “attacked by his uncle’s paid goons when he was studying” and was lucky to escape thanks to a few men who challenged the “goons”;
(f)his uncle also tried to drown the applicant by throwing him into a canal. The applicant was lucky to survive because he knew how to swim (saving his own life);
(g)when the applicant’s father became aware of his uncle’s “plans”, he arranged for the applicant to obtain a student visa in Australia;
(h)the applicant is fearful that his uncle will kill him or have him “jailed for life”;
(i)because the applicant’s uncle is an active leader in the BJP, he will be able to locate the applicant in any part of India and killings over property are “very common” in India; and
(j)the applicant did not seek help in India because the police only listen to politicians and the police will jail him and “orchestrate a fake case against him.
The Tribunal outlined the documents that the applicant had provided to the Department in support of his protection visa claims (being the visa application and a copy of the applicant’s Indian passport) and confirmed that the applicant had attended an interview with the Department on 18 February 2019 (further noting that, although an interpreter had been provided for the interview, the applicant chose not to use the interpreter) (at [11]-[12]).
The Tribunal confirmed that it had listened to an audio recording of the applicant’s interview with the Department and outlined the additional evidence provided by the applicant during that interview, as follows (at [13]):
(a)the applicant’s uncle is a “professional politician and a member of the BJP”;
(b)the applicant had no intention of returning to India when he arrived in Australia and studied for approximately two years before suffering from depression and ceasing his studies;
(c)he did not contact the Department when his student visa expired as he feared being returned to India and instead stayed home (with his father providing him with financial support);
(d)the land in India is approximately 200 acres in size with his uncle owning 110 acres and his father owning 90 acres;
(e)someone threw the applicant into a canal when he was coming home from school in Year 11 but someone else saved him;
(f)his father and his uncle fought in 2016 and his father sustained some injuries;
(g)the applicant has not been threatened by his uncle since he has been in Australia and his uncle “cannot come here”;
(h)the applicant cannot give up the land in India as his family relies on it. His family is unable to sell the land as his uncle “has a stay in place that prevents the sale”; and
(i)the applicant did not apply for protection for nearly nine years after arriving in Australia as he was not aware that he could do so.
The Tribunal then summarised the delegate’s decision, noting that the delegate had highlighted that the applicant had only provided minimal details regarding his protection claims and the delegate also noted inconsistencies and implausibilities in the applicant’s testimony. It was on that basis, the Tribunal explained, that the delegate was not satisfied that the applicant’s claims were genuine, credible or reflective of his true circumstances. The Tribunal further noted that the delegate ultimately concluded that the applicant was not a refugee as defined in s 5H of the Act and s 36(2)(a) of the Act or that the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act (at [14]).
The Tribunal explained that the applicant’s representative had provided submissions to it on 19 September 2022 which explained that (at [17]):
(a)the applicant’s uncle is a “highly influential political leader” and is affiliated with the BJP;
(b)the applicant’s uncle does not want the applicant to inherit land owned by the applicant’s father and, for that reason, the applicant’s uncle tried to kill the applicant by drowning him in a canal when he was 11 years old and arranging for others to kill the applicant when he was nine years old;
(c)the applicant is a member of the social group, being “wealthy landlord who is being targeted because of his property” and he has a well-founded fear of both serious and significant harm; and
(d)the applicant’s uncle has influence over the police and law enforcement so it is “highly unlikely” that they will provide effective protection to the applicant.
The Tribunal then detailed the applicable legal principles relevant to assessing an applicant’s credibility, noting that it would be guided by the observations and comments made by the High Court of Australia (the “High Court”) and Federal Court of Australia (the “Federal Court”), referencing, in particular, the decisions in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; Nagalingam v Minister for Immigration Local Government and Ethnic Affairs (1992) 38 FCR 191; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. The Tribunal also confirmed that it had taken into account the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility in conducting the hearing and evaluating the applicant’s evidence (at [22]-[25]).
The Tribunal explained that during the hearing it had discussed the applicant’s protection claims with him. The Tribunal noted that it had formed the impression that the applicant had drawn on some experiences that he had had in India but that the applicant “tended to exaggerate and misconstrue the consequences of those, with a view to bolstering his claims for protection”. The Tribunal also formed the view that “key aspects of the applicant’s claims had been fabricated”.
The Tribunal explained that it had five main concerns, as follows (at [26]-[27]):
(a)the applicant’s evidence about the claimed incidents of harm were fabricated in order to support his protection claims. In particular, the Tribunal was concerned with key inconsistencies in the evidence given by the applicant regarding his age at the time of the alleged attempted canal drowning, the applicant’s address in India and his ability to swim; a key omission in the applicant’s oral evidence regarding details about the claimed attack by the applicant’s uncle’s paid goons (outlined in the applicant’s visa application) and belated and new claims made by the applicant at the hearing regarding threating phone calls the applicant received from unknown persons and the death of his sister (which was being treated by police as suspicious) (at [29]-[39]);
(b)there was a distinct lack of corroborative evidence in relation to the applicant’s claimed incidents of harm, noting that, despite being given opportunities to provide such evidence by the Department and the Tribunal, the applicant did not avail himself of the opportunity to do so. The Tribunal noted, in particular, that at the conclusion of the Tribunal hearing, it put its concerns to the applicant in relation to the lack of documentary evidence in support of his claims and provided the applicant with an additional 28 days following the hearing within which to provide such evidence. The Tribunal noted that, as at the date of its decision, the applicant had not provided any additional evidence. Further, the Tribunal noted that in the applicant’s case, the lack of evidence (particularly as it related to the land) raised further concerns about the applicant’s credibility and the genuineness of his claims (at [41]-[49]);
(c)other aspects of the applicant’s evidence were vague and lacking in meaningful detail. The Tribunal noted, in particular, that the applicant had not provided “any real detail about the nature, content or frequency of the threating calls his father had received” and was not able to “sufficiently detail the interactions he and his family had when seeking to make complaints with the police about the claimed harm they [had] sustained”. The Tribunal accepted that the applicant may have been taking medication to treat depression and anxiety and that he “may experience some difficulty with memory recall”. However, the Tribunal found that that was not sufficient to overcome the other concerns it had with the applicant’s claims (at [50]-[53]);
(d)the applicant’s evidence demonstrated a lack of knowledge about key aspects of his claims, in particular, how the land in question was being used or the fact that the applicant did not know the names of the men who had saved him from drowning in the canal as the applicant had claimed (at [54]-[56]); and
(e)the applicant’s conduct and migration history only strengthened the Tribunal’s concerns about the applicant’s protection claims. In particular, the Tribunal accepted the applicant’s explanation for his delay in leaving India, however, the Tribunal had “difficulty accepting the applicant’s explanation for the significantly long delay of eight years before lodging a protection visa application” (at [57]-[61]).
Having considered the applicant’s claims and evidence, the Tribunal found that the applicant was not a witness of truth. The Tribunal accepted that the applicant was born in India but otherwise did not accept any of the applicant’s protection claims and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (at [62]-[66]).
The Tribunal also considered the alternative criterion in s 36(2)(aa) of the Act and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations. Accordingly, the Tribunal found that the applicant did not satisfy the criterion on s 36(2) of the Act (at [67]-[68]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [69]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 31 August 2023 contains five grounds of review as follows (without alteration):
1.The Second Respondent made jurisdictional error by failing to comply with the requirements of ss 424AA and 425 of the Migration Act 1958.
Particulars
(a)At [27], the Second Respondent failed to give clear particulars of any information that it considered was the reason, or a part of the reason, for affirming the decision that was under review and primarily based its decision on the findings made by the First Respondent.
(b)The Second Respondent based its decision on credibility concerns but did not give clear particulars to the Applicant at [29] in that it considered on bare assumptions that the applicant’s evidence about the claimed incidents of harm have been fabricated in order to support his claims for protection.
(c)The Second Respondent failed to ensure that the Applicant understood on multiple occasions the consequences of the information the Second Respondent relied on in affirming the decision, and that at [44] and [45] clearly understood the offer to provide corroborative evidence.
(d)The Second Respondent raised credibility concerns to the Applicant’s inconsistencies in evidence compared to written claims and evidence before the First Respondent yet failed to reasonably provide a fair opportunity to comment on the concerns raised and also to ensure whether the Applicant reasonably understood the questions asked to him.
(e)At [17], the Second Respondent made failed to consider the email from the representative attached to which was a completed hearing response form and letter dated 19 September 2022.
(f)The Second Respondent made a decision which was based on a strongly held view and based on the findings made by the First Respondent.
(g)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
2.The Second Respondent made jurisdictional error by making a decision that was unreasonable and irrational.
Particulars
(a)At [50] and [54], the Second Respondent raised that Applicant’s evidence were vague and lacking in meaningful detail.
(b)Alternatively, the Second Respondent failed to consider that the credibility concerns identified were the product of the Applicant’s memory difficulties, the passage of time rather than lack of truthfulness, despite accepting at [53] that Applicant’s may experience some difficulty with memory recall, cognition and articulation.
(c)At [58] and [59], the Second Respondent accepted the applicant’s explanation for the delay in leaving India.
(d)At [60] and [61], the Second Respondent simply presumed that the Applicant's evidence about finding out about protection visa eligibility during a conversation with a total stranger in a local park to be far-fetched and implausible.
(e)Please see particulars (a) to (f) to Ground 1.
(f)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
3.The Second Respondent made jurisdictional error by failing to give any active actual consideration or any consideration at all to the Applicant’s claims or possible entitlements under section 36 (2) (aa) of the Migration Act 1958.
4.The Second Respondent made jurisdictional error by failing to give actual active intellectual consideration to the Applicant’s claims to face harm in India from his uncle and acted in contravention of the principle stipulated in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
5.The Second Respondent made jurisdictional error by failing to act in a way that is fair and just under s 422B of the Migration Act 1958.
Particulars
(a) Please see particulars to Ground 1.
(b) Please see particulars to Ground 2.
(c)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
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 31 August 2023, a Court Book numbering 103 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 21 May 2024 and an affidavit of service of Benjamin Mayne affirmed and filed on 31 May 2024.
The applicant appeared before this Court without legal representation. At the applicant’s request, a Punjabi interpreter was made available to him at the hearing. The applicant elected to proceed in English without the assistance of the interpreter. The Court asked the interpreter to remain in the court room during the hearing in the event that an interpreter’s services were required. The Court is satisfied that the applicant was able to properly communicate with the Court and engage with the hearing process and no issues of concern arose in this regard.
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 (“SZMDS”) 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 told the Court that he had tried to explain what was going on and what was happening when he went to the Tribunal but “the person in front of [him] did not want to listen and seemed to have already made up his mind”. When asked by the Court if he was suggesting that he was not given a chance to speak, the applicant said that this was not what he meant. Rather, he was concerned that the Tribunal member “seemed to be ignoring [him] and did not want to listen to what [he] had to say”.
The applicant also explained that he had tried to obtain evidence from the police to give to the Tribunal but he could not get anything. The applicant stressed that his uncle is a politician and “has a big influence”. He also noted that he had not raised his protection claims for eight years because he was here to study and was dealing with depression and anxiety and did not know that he could apply for protection.
The applicant’s oral submissions, to the extent that they raise any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one states:
1.The Second Respondent made jurisdictional error by failing to comply with the requirements of ss 424AA and 425 of the Migration Act 1958.
Particulars
(a)At [27], the Second Respondent failed to give clear particulars of any information that it considered was the reason, or a part of the reason, for affirming the decision that was under review and primarily based its decision on the findings made by the First Respondent.
(b)The Second Respondent based its decision on credibility concerns but did not give clear particulars to the Applicant at [29] in that it considered on bare assumptions that the applicant’s evidence about the claimed incidents of harm have been fabricated in order to support his claims for protection.
(c)The Second Respondent failed to ensure that the Applicant understood on multiple occasions the consequences of the information the Second Respondent relied on in affirming the decision, and that at [44] and [45] clearly understood the offer to provide corroborative evidence.
(d)The Second Respondent raised credibility concerns to the Applicant’s inconsistencies in evidence compared to written claims and evidence before the First Respondent yet failed to reasonably provide a fair opportunity to comment on the concerns raised and also to ensure whether the Applicant reasonably understood the questions asked to him.
(e)At [17], the Second Respondent made failed to consider the email from the representative attached to which was a completed hearing response form and letter dated 19 September 2022.
(f)The Second Respondent made a decision which was based on a strongly held view and based on the findings made by the First Respondent.
(g)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
By ground one, the applicant claims that the Tribunal failed to comply with the requirements set out in s 424AA of the Act and s 425 of the Act for various reasons.
The Court will first address the applicant’s claim that the Tribunal failed to comply with s 425 of the Act.
Section 425 of the Act relevantly provides as follows:
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.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Any suggestion that the Tribunal failed to comply with s 425 of the Act fails on a factual level.
On 29 August 2022, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before it on 29 September 2022 (CB 65-70). The applicant attended that hearing (on 29 September 2022) to give evidence and present arguments (CB 80-82).
No jurisdictional error arises in this regard.
The applicant also provides various “reasons” (by way of particulars) as to why he is of the view that the Tribunal did not comply with its requirements under s 424AA (and, arguably, s 424A) of the Act.
Before addressing the ways in which the applicant suggests that the Tribunal failed to comply with those provisions, it is useful to first set the relevant statutory requirements.
Section 424A of the Act requires that the Tribunal put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, in the alternative, s 424AA of the Act) and relevantly states:
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; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424AA of the Act relevantly provides as follows:
424AAInformation and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
As can be seen from the statutory extracts provided above, the Tribunal is required to comply with s 424AA (or s 424A) of the Act in respect 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”.
Information is not defined under the Act or the Migration Regulations 1994 (Cth). However, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court defined “information” as meaning the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies, or the absence of evidence” or the Tribunal’s disbelief.
Essentially, for the purpose of s 424A and s 424AA of the Act, “information” does not include the following:
(a)information referenced in s 424A(3) of the Act, being information:
(i)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member: s 424A(3)(a) of the Act;
(ii)that the applicant gave for the purpose of the application for review: s 424A(3)(b) of the Act;
(iii)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department: s 424A(3)(ba) of the Act; and
(iv)that is non‑disclosable information: s 424A(3)(c) of the Act;
(b)“the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”) at [24] per Finn and Stone JJ; SZYBR at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 (“SZGUR”) at [9];
(c)“identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZYBR at [18]; SZGUR at [9]; and
(d)doubts, inconsistencies or the absence of evidence: SZYBR at [18].
Further, the Full Court of the Federal Court has clarified that information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and any such information must be information that “would” be the reason, or part of the reasons for affirming the decision (rather than information that “could” or “might” be such a reason): SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3 at [18] per Perram, Jagot and Griffiths JJ.
Particulars (a) and (b)
By particulars (a) and (b) of ground one, the applicant takes issue with the following paragraphs of the Tribunal’s decision:
27.The Tribunal formed the impression that the applicant’s protection claims drew on some experiences that he had in India, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. The Tribunal also formed the impression that key aspects of the applicant’s claims had been fabricated. Further, the applicant provided no persuasive corroborative evidence in support of his claims which, in the particular circumstances of his case, concerns the Tribunal. In reaching this view, the Tribunal has also had regard to a range of concerns in relation to key aspects of the evidence before the Tribunal, as well as other reasons detailed below. Overall, the Tribunal did not find either the applicant to be a credible witness.
…
29.Firstly, the Tribunal considers the applicant’s evidence about the claimed incidents of harm to have been fabricated in order to support his claims for protection. The Tribunal is concerned about key inconsistencies, a key omission as well as belated and new claims in relation to such incidents. Further, much of the detail the applicant provided in the Tribunal hearing about these incidents was in response to questioning by the Tribunal rather than being offered by him.
The applicant essentially claims that, when assessing his credibility, the Tribunal failed to put him on notice of any issues with his evidence prior to making the findings outlined in the paragraphs set out above.
As set out above, the Tribunal’s thought processes or determinations or any gaps in or absence of evidence are not “information” which the Tribunal was required to put to the applicant for the purposes of s 424A or s 424AA of the Act: VAF at [24] per Finn and Stone JJ; SZYBR at [18]; SZGUR at [9].
Further, as correctly submitted by the Minister (at [19]) in written submissions filed in this Court on 21 May 2024), the findings made by the Tribunal were open to it based on the evidence before it. The Court is satisfied that the Tribunal’s findings were based on rational grounds and were arrived at following consideration of matters that were logically probative on the issue of credibility: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.
No jurisdictional error arises in relation to particulars (a) or (b).
Particular (c)
In particular (c), the applicant claims that the Tribunal failed to ensure that he understood the information upon which the Tribunal relied. Nor did the Tribunal ensure that the applicant understood that he could provide further corroborative evidence.
As correctly pointed out by the Minister in written submissions (provided to this Court on 21 May 2024), the function of the Tribunal is to respond to the case that the applicant advances: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs No. 2 [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ.
The Court notes that, notwithstanding the authorities referenced above, the Tribunal in this matter outlined that it had discussed the issue of the provision of corroborative evidence with the applicant at the hearing of this matter and the Tribunal addressed this in some detail in its written reasons. In particular, the Tribunal noted (at [41]-[49]) that it had concerns about the lack of corroborative evidence from the applicant in relation to claimed incidents of harm and outlined the opportunities that the applicant had been given (both by the delegate and by the Tribunal) to provide further corroborative evidence.
The Tribunal also noted that, following discussions with the applicant during the Tribunal hearing, the applicant himself offered to obtain documentary evidence in support of his protection claims. The Tribunal noted that it “welcomed the provision of supporting evidence” and indicated that it would “consider all evidence received before it made its decision” (at [45]). The Tribunal then detailed its discussion with the applicant at the conclusion of the hearing before it (on 29 September 2022) where it put its concerns to the applicant about the “lack of persuasive evidence” and, in particular, “documentary evidence” and detailed for the applicant the matters for which it might expect to see such evidence (at [46]).
The Tribunal also records the applicant as responding that he was “unaware of the need to provide documents and would have done so if asked”. Further, the applicant told the Tribunal that he “wished to obtain and provide documentary evidence in support of [his] claims”. The Tribunal then asked the applicant how much additional time he required to do so and the applicant suggested “maybe a month, but possibly longer”. The Tribunal recorded that it allowed the applicant a further 28 days (until 27 October 2022) to provide such evidence but also told the applicant that all information and documents provided to the Tribunal up to the date of its decision would be considered (at [47]).
Despite the Tribunal allowing the applicant the additional time (until 27 October 2022) to provide further information and documentary evidence, and despite the Tribunal not making any decision in this matter until 4 August 2023 (over ten months later), the applicant did not provide any further information to the Tribunal (at [48]).
The Court notes that, as detailed above, the applicant told the Court in oral submissions that he had tried to obtain evidence from the police to give to the Tribunal but could not get anything, stressing that his uncle is a politician and “has a big influence” which meant he was not able to obtain any evidence.
The Court is satisfied that the applicant was aware that he was able to provide corroborative evidence to the Tribunal and did not do so.
No jurisdictional error arises in this regard.
Particular (d)
By particular (d), the applicant claims that the Tribunal raised inconsistencies between the his evidence as provided to the delegate at interview and the evidence given by him at the Tribunal hearing.
Whilst the Tribunal identifies various inconsistencies in evidence provided by the applicant at the Tribunal hearing (including the fact that the applicant’s evidence changed during the course of that hearing) and the information contained in the submissions provided on behalf of the applicant on 19 September 2022 and the details provided in the applicant’s visa application (see the Tribunal’s reasons at [32]-[34]), as explained by this Court above, such inconsistences are not considered “information” that the Tribunal is required to put to the applicant pursuant to s 424A of the Act: SZYBR at [18].
No jurisdictional error arises in this regard.
Particular (e)
Particular (e) suggests that the Tribunal failed to consider the email from the applicant’s representative to the Tribunal attaching a letter with submissions on behalf of the applicant (dated 19 September 2022) and the completed hearing response form.
This fails on a factual level.
The Tribunal expressly details those “submissions” in its written reasons as follows:
17.On 19 September 2022, the Tribunal received an email from the representative attached to which was a completed hearing response form and letter dated 19 September 2022. The Tribunal understood this letter to contain the following submissions:
•The applicant does not want to return to India because he fears his uncle will kill him. The applicant’s uncle is a ‘highly influential political leader who is affiliated with the Bharatiya Janata Party (BJP)’ and does not want the applicant to inherit land owned by the applicant’s father. The applicant’s uncle attempted to kill the applicant in the past. First, the applicant’s uncle arranged for others to kill the applicant when the applicant was 9 years old. Second, the applicant’s uncle tried to drown the applicant in the Rajasthan Canal when the applicant was 11 years old.
•The applicant is a member a particular social group, namely ‘wealthy landlord who is being targeted because of his property’.
•The applicant's fear of harm is well-founded and amounts to both ‘serious harm’ and ‘significant harm’.
•Police in India are often unable or unwilling to provide protection to the victims where the other party is involved in the politics. The applicant’s uncle has influence over police and other personnel working in law enforcement so it is highly unlikely that the police will provide effective protection to the applicant.
…
32.The Tribunal notes that the evidence relating to the applicant’s age at the time of this incident is inconsistent with that specified in the representative’s submission to the Tribunal prior to the hearing. The Tribunal draws no adverse inference in relation to this inconsistency and prefers the applicant’s evidence at hearing on this issue as it was provided by the applicant in person and consistent with the applicant’s evidence before the Department. That said, the Tribunal still has difficulty accepting that this incident occurred as claimed and for the reasons claimed.
As can be seen from the paragraphs above, the Tribunal expressly considered the submissions provided by the applicant’s representative.
No jurisdictional error arises in this regard.
Particulars (f) and (g)
Particular (f) simply asserts that the Tribunal’s decision was based on a strongly held view and based on the findings made by the delegate.
There is no evidence before the Court to suggest that the Tribunal’s decision was anything but well-reasoned and forensic. Whilst the Tribunal ultimately came to the same conclusions as the delegate and summarised the delegate’s decision in its written reasons, the Tribunal’s factual findings differed. Further, the Tribunal actively engaged with the applicant, asked the applicant a variety of questions and sought additional information and evidence from him.
No jurisdictional error arises in relation to particular (f).
The issue of bias will be considered separately below.
Particular (g)
Particular (g) states that “further particulars will be supplied on receipt of the transcript of the Tribunal hearing”.
As at the date of this decision, no transcript of the Tribunal hearing was filed by the applicant and no additional particulars have been provided.
This is not a “ground of review” that the Court can assess and raises no issue of jurisdictional error.
Ground two
Ground two provides:
2.The Second Respondent made jurisdictional error by making a decision that was unreasonable and irrational.
Particulars
(a)At [50] and [54], the Second Respondent raised that Applicant's evidence were vague and lacking in meaningful detail.
(b)Alternatively, the Second Respondent failed to consider that the credibility concerns identified were the product of the Applicant’s memory difficulties, the passage of time rather than lack of truthfulness, despite accepting at [53] that Applicant’s may experience some difficulty with memory recall, cognition and articulation.
(c)At [58] and [59], the Second Respondent accepted the applicant’s explanation for the delay in leaving India.
(d)At [60] and [61], the Second Respondent simply presumed that the Applicant’s evidence about finding out about protection visa eligibility during a conversation with a total stranger in a local park to be far-fetched and implausible.
(e)Please see particulars (a) to (f) to Ground 1.
(f)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
As outlined above, the applicant claims (by ground two) that the Tribunal’s decision was “unreasonable and irrational”. He provides six particulars in support of that claim.
Before addressing the applicant’s ground and particulars, it is first useful to set out some of the relevant authorities in relation to illogicality, irrationality and legal unreasonableness.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In relation to allegations of illogicality and irrationality, the Court notes that fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [52] per McKerracher J.
It is also well established that SZMDS (referenced above at [35(g)]) sets a very high threshold for findings of irrationality or illogicality. Further, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.
Particulars (a) and (b)
Particulars (a) and (b) take issue with the following passages of the Tribunal’s written reasons:
50.Thirdly, the Tribunal is also concerned about other aspects of the applicant’s evidence that were vague and lacking in meaningful detail.
…
53.Asked at hearing to account for the vague and undetailed nature of various aspects of his evidence, the applicant explained that his anxiety and depression make him nervous and this sometimes slowed down his thinking. After some discussion, the applicant explained that he had attended a series of ten fortnightly appointments with a psychiatrist which concluded 18 months prior to the hearing, following which he had been prescribed [medication] daily by [Doctor]. While the Tribunal accepts that the applicant may be taking medication to treat depression and anxiety, without any expert evidence, it is not in a position to assess the degree to which, if any, such medication might affect or otherwise impair his memory or thought processes. Even accepting that the applicant, like many people do, may experience some difficulty with memory recall, cognition and articulation, this is insufficient in terms of overcoming the other concerns outlined in this decision.
54.Fourthly, the Tribunal is also concerned about other aspects of the applicant’s evidence that demonstrated a lack of knowledge about key aspects of his claims.
Essentially, the applicant takes issue with the findings made by the Tribunal at [50] and [54] regarding the lack of meaningful detail and vagueness of the applicant’s evidence. The applicant also claims that the Tribunal failed to consider that the “credibility concerns” raised were a result of the applicant’s memory difficulties and the passage of time, rather than a “lack of truthfulness”.
The Court notes that the Tribunal here accepted that the applicant may have been taking some medication to treat his depression and anxiety. However, in the absence of any expert evidence in that regard, the Tribunal was not able to assess the degree to which (if any) such medication might affect or impair the applicant’s memory or thought processes. Further, even accepting that the applicant may experience some difficulty with memory recall, the Tribunal found that that was not sufficient to overcome the other concerns that it had in relation to the applicant’s evidence.
The Court is satisfied that the findings made by the Tribunal in this regard were reasonable and rational and open to it on the evidence before it.
No jurisdictional error arises in this regard.
Particular (c)
In particular (c), the applicant simply states that the Tribunal (at [58]-[59]) accepted his explanation for his delay in leaving India.
This is not disputed and no case of jurisdictional error arises in this regard.
Particular (d)
By particular (d), the applicant claims that the Tribunal “simply presumed” that his evidence in relation to finding out about protection visa eligibility “during a conversation with a total stranger in a local park” was “far-fetched and implausible”.
The Tribunal’s findings in this regard are set out as follows (emphasis added):
61.The Tribunal has difficulty accepting the applicant’s explanation for the significantly long delay of eight years before lodging a protection visa application. The explanation is largely based upon a range of implausibilities given the circumstances of this case:
•At interview with a delegate when asked to explain why he came to Australia, the applicant immediately stated that his uncle had wanted to kill him so he did his IELTS test and ‘quickly got out’. It is therefore difficult to accept that the applicant would have not taken earlier, if not immediate, action to further investigate his visa options in Australia once he ‘got out’ of India.
•The applicant entered Australia on a student visa where he studied, worked and had greater access to the internet than in India. Given the nature of his protection claims, it is difficult to accept that for a period of eight years after his arrival in Australia he did not undertake any research or obtain advice about his visa options or candidly speak with other students and Indian community locals about his visa options, particularly after becoming an unlawful non-citizen on 2 May 2011. The Tribunal finds the applicant’s evidence about finding out about protection visa eligibility during a conversation with a total stranger in a local park to be far-fetched.
As can be seen from the passages above, the Tribunal reasoned that, based on the applicant’s circumstances, it was difficult to accept that the applicant would not have taken immediate action to investigate his visa options when he arrived in Australia and, on that basis, his explanation for the delay in making a protection visa application was implausible. Further, the Tribunal also considered that the applicant’s evidence regarding a conversation with “a total stranger” was “far-fetched”.
As correctly submitted by the Minister (at [25] in written submissions filed in this Court on 21 May 2024), the Tribunal’s adverse credibility findings in this regard did not require positive evidence. Here, they demonstrate the Tribunal’s disbelief of the applicant’s evidence based on the circumstances of this matter: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17].
The Tribunal’s findings were made in circumstances where the applicant had arrived in Australia as the holder of a student visa and had worked and studied in Australia before becoming unlawful for nearly six years. Further, during that period where the applicant was unlawful, he appeared to take no steps to seek advice about his visa options through the Department or by seeking assistance from other students or the Indian community. Whilst this Court may not have come to the same conclusion, that is not the test in cases such as these and it cannot be said that no rational or logical decision maker could have arrived at the same decision in the circumstances: SZMDS at [130]-[131].
No jurisdictional error arises in this regard.
Particular (e)
Particular (e) references particulars (a) to (f) of ground one.
To the extent that the applicant suggests that the Tribunal’s findings in relation to the applicant’s credibility were illogical, irrational or legally unreasonable, the Court disagrees for the reasons set out above.
As set out above (in relation to ground one), the Tribunal’s findings in relation to the applicant’s credibility were open to it on the evidence before it and no jurisdictional error arises in this regard.
Particular (f)
Similar to particular (g) in ground one above, particular (f) states that “further particulars will be supplied on receipt of the transcript of the Tribunal hearing.
As was explained above, as at the date of this decision, no transcript of the Tribunal hearing was filed by the applicant and no additional particulars have been provided.
This is not a “ground of review” that the Court can assess and raises no issue of jurisdictional error on the part of the Tribunal.
Ground three
Ground three states:
3.The Second Respondent made jurisdictional error by failing to give any active actual consideration or any consideration at all to the Applicant’s claims or possible entitlements under section 36 (2) (aa) of the Migration Act 1958.
As outlined above, the applicant claims that the Tribunal failed to give any active consideration to the applicant’s claims when assessing the complementary protection criteria (as set out in s 36(2)(aa) of the Act).
It is well settled that where the essential claims and facts being relied upon by an applicant are the same for Convention purposes and complementary protection purposes, the Tribunal is entitled to rely on its Convention findings in assessing whether the there is a real chance of significant harm: MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at 31; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55]-[56].
In the circumstances of this matter, the Tribunal rejected the applicant’s protection claims in their entirety (at [64] in its written reasons). Having done so, the Tribunal referenced those findings and, as a result, found that the applicant was also not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
The Tribunal was entitled to do so in the circumstances of this case.
No jurisdictional error arises in this regard.
Ground four
Ground four provides:
4.The Second Respondent made jurisdictional error by failing to give actual active intellectual consideration to the Applicant’s claims to face harm in India from his uncle and acted in contravention of the principle stipulated in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
The applicant here references Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
Khawar was referenced in submissions provided to the Tribunal on behalf of the applicant (on 19 September 2022) as follows:
12.We submit that the Police in India are often unable or unwilling to provide protection to the victims where the other party is involved in the politics. The applicant fears harm from his uncle who is highly influential to police and other personnel working in law enforcement so it is highly unlikely that they will attempt to punish or stop him. The case of MIMA v Khawar (2002) it was established that serious harm involved in persecution may be perpetrated by non-state agents where this is tolerated by the state.
The Court assumes that the applicant’s representative was referencing the following passages from Khawar (footnotes omitted):
29.If there is a persecutor of a person or a group of people, who is a “non-state agent of persecution”, then the failure of the state to intervene to protect the victim may be relevant to whether the victim’s fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
30.The references in the authorities to state agents of persecution and non-state agents of persecution should not be understood as constructing a strict dichotomy. Persecution may also result from the combined effect of the conduct of private individuals and the state or its agents; and a relevant form of state conduct may be tolerance or condonation of the inflicting of serious harm in circumstances where the state has a duty to provide protection against such harm. As was noted earlier, this is not a case in which it is necessary to deal with mere inability to provide protection; this is a case of alleged tolerance and condonation. In Ex parte Shah, Lord Hoffmann, in giving the example of the Jewish shopkeeper set upon with impunity by business rivals in Nazi Germany, referred to the failure of the authorities to provide protection, based upon race, as an “element in the persecution”. The same expression was used by Lord Hope of Craighead in the passage from Horvath quoted above.
In the circumstances of this matter, the Tribunal did not accept that the applicant would face harm from his uncle. The Tribunal rejected the applicant’s claims that his uncle had tried to kill him or arranged for anyone else to kill him. The Tribunal also did not accept that the applicant’s uncle was a highly influential political leader as claimed (at [64] in the Tribunal’s written reasons).
In circumstances where the Tribunal did not consider that the applicant would face any risk of harm at the hands of his uncle, it was unnecessary for the Tribunal to go on to consider whether the applicant could seek protection from the police from any such harm.
No jurisdictional error arises in this regard.
Ground five
Ground five states:
5.The Second Respondent made jurisdictional error by failing to act in a way that is fair and just under s 422B of the Migration Act 1958.
Particulars
(a) Please see particulars to Ground 1.
(b) Please see particulars to Ground 2.
(c)Further particulars will be supplied on receipt of the transcript of the AAT hearing conducted on 29 September 2022.
By this ground, the applicant suggests that the Tribunal failed to comply with its obligations under s 422B of the Act. That is, the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule.
As explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
For the reasons that follow, the Court is satisfied that the applicant was afforded natural justice and given ample opportunity to provide evidence to the Tribunal and present arguments in support of his case.
Relevantly, the Court notes that the applicant:
(a)was invited to, and attended, a hearing before the Tribunal on 29 September 2022 (as required by ss 425 and 425A of the Act) (CB 65-70 & 80-82);
(b)provided written submissions (through his representative) to the Tribunal in support of his review application on 19 September 2022 (CB 71-76);
(c)was assisted throughout his review application by his representative (though that representative did not attend the Tribunal hearing on 29 September 2022) (CB 80);
(d)was on notice from the time of the delegate’s decision (being from 13 March 2019) that the credibility of his protection claims and the lack of evidence in support of those claims were in issue. As such, the Tribunal was not required to put the applicant on notice: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; and
(e)was given multiple opportunities to provide further documentary evidence to the Tribunal, including before and after the Tribunal hearing. For example, the applicant was given an additional 28 days after the Tribunal hearing within which to provide corroborative evidence in support of his protection claims and was told that he could provide further evidence at any time prior to the Tribunal making its decision (which it did not do until 4 August 2023). However, the applicant did not do so (CB 96 at [48]).
The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case and that the applicant was afforded natural justice in this matter.
No jurisdictional error arises in this regard.
Oral submissions
In oral submissions before this Court, the applicant claimed that he had tried to explain what was going on and what was happening when he went to the Tribunal but the person in front of him did not want to listen to him and seemed to have already made up his mind.
The Court takes this submission to be an allegation of bias.
It is well established that any allegation of bias is one that must be distinctly made and clearly proven.
To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case.
The Tribunal invited the applicant to attend a hearing, gave the applicant an opportunity to provide additional documents before the hearing (which the applicant’s representative did, providing the Tribunal with written submissions on 19 September 2022, prior to the Tribunal hearing) and considered that evidence. The Tribunal asked questions of the applicant and assessed his responses when considering his protection claims and credibility. The Tribunal also gave the applicant further time after the hearing to provide corroborative evidence in support of his protection claims. However, as outlined above, the applicant did not do so.
The Tribunal assessed the information before it (including the submissions provided by the applicant’s representative, the information provided by the applicant in his visa application and the applicant’s oral evidence at the Tribunal hearing).
Ultimately, the Tribunal found that the applicant was “not a witness of truth”, rejected the applicant’s protection claims in their entirety and affirmed the delegate’s decision refusing to grant the applicant the visa.
The Court is satisfied that the Tribunal was not biased in its review.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 31 August 2023) and the applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 July 2024
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