CJU17 v Minister for Immigration and Border Protection

In the matter of CJU17 v Minister for Immigration and Border Protection, the applicants, who were seeking to appeal the decision of the Tribunal that they did not face a real chance of serious or significant harm if returned to their home country of India, sought an extension of time in which to lodge their appeal. The Minister consented to the extension but opposed the substantive appeal. The applicants' claims were based on fears that they would be subject to harm from the First Applicant's ex-husband and his family who sought to gain control over the First Applicant’s mother’s property. The Tribunal had found that the applicants did not face a real chance of serious or significant harm.

The issue before the court was whether the Tribunal had complied with s 424A of the Act in respect of certain evidence given by a witness, AB, who was the First Applicant's older sister's husband. Section 424A of the Act requires the Tribunal to provide the applicant with clear particulars of any information that would be the reason, or a part of the reason, for affirming the decision under review, ensure that the applicant understands why it is relevant to the review, and the consequences of it being relied on, and invite the applicant to comment on or respond to it. The Tribunal had recorded AB's evidence and the First Applicant's belief as to the circumstances of the death of her ex-husband's previous wife but had not put the information from AB to the First Applicant in accordance with s 424A, nor did it send a letter to the First Applicant under s 424A.

The court found that AB's evidence did not, in its terms, contain a rejection, denial or undermining of the applicants' claims to satisfy the criteria for a visa. Rather, it tended to in fact support the view that the First Applicant's ex-husband's family had a history of causing harm to others. The Tribunal's recording of the 'discrepancy' between the accounts of the First Applicant and AB of the ex-husband's previous wife's death merely went to the credibility of their respective evidence. Therefore, AB's evidence was not information that, in its terms, would be the reason (or part of the reason) for affirming the decision under review.

The court granted the extension of time for the appeal to be filed and served, but dismissed the appeal with costs.