CLF19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1303
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLF19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1303
File number(s): SYG 1524 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 28 November 2024 Catchwords: MIGRATION – Whether factual error present in findings of Tribunal – if so whether error material – whether Tribunal failed to put dispositive issues to applicant Legislation: Migration Act 1958 (Cth) ss 65, 425 Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184
Acuna Plaza v Minister got Immigration, Citizenship and Multicultural Affairs (No 2) (2019) 164 ALD 258
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
SZBEL v Minister for Immigration Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: General Federal Law Number of paragraphs: 45 Date of hearing: 2 May 2024 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Success Lawyers and Barristers Counsel for the First Respondent: Ms N Gollan Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 1524 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLF19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 21 June 2019, as amended, is 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 GIVEN
Before the Court is an application for judicial review seeking, inter alia, orders quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 May 2019, which affirmed a decision of a delegate of the Minister (delegate) to refuse the applicant a protection visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The background and summary of the Tribunal’s decision are primarily derived from the written submission of the parties and, unless otherwise indicated, do not appear to be in dispute.
The applicant is an Indian national (CB 157 at [16]). On 2 June 2013, he arrived in Australia, holding a Visitor visa (Subclass 600). The applicant departed Australia on 29 June 2013, but subsequently returned on 1 February 2014 (again travelling on a Visitor visa (Subclass 600)) (CB 154 at [2]).
On 30 April 2014, the applicant applied for a Protection visa (CB 154 at [3]).
On 1 December 2014, the delegate refused the visa application (CB 154 at [3]).
On 24 December 2014, the applicant applied to the Tribunal for review of the delegate’s decision (CB 77 to 82). On 30 May 2016, the Tribunal affirmed the delegate’s decision (first Tribunal decision) (CB 99) which decision was the subject of a judicial review application to the (then) Federal Circuit Court of Australia (FCCA). On 6 April 2018, the FCCA quashed the first Tribunal decision and remitted the proceedings to the Tribunal for redetermination according to law, on the basis of an error conceded by the Minister which pertained to apprehended bias (CB 104 to 105 and 154 at [3]).
Next, the applicant was invited to a hearing before a Tribunal (differently constituted than the first) (CB 114 to 115), which he attended (CB 114 and 126) (second Tribunal hearing). On 26 May 2019, the Tribunal affirmed the decision of the delegate (CB 153 to 169). It is that decision which is the subject of these proceedings.
The Tribunal decision
The Tribunal found the applicant not to be a credible or reliable witness (CB 157 at [19]) for reasons which can be distilled as follows:
(a)that by his statement in support of the visa application, the applicant claimed to have obtained a job at a certain business in India in March 2013, for which he travelled to Australia for training. However, at the second Tribunal hearing, when asked about his employment history, the applicant said he had not had a job in India since 2009 (CB 157 to 158 at [20] to [21]). The Tribunal considered this inconsistency to be significant because (CB 158 at [22]):
the applicant’s evidence in relation to his employment are significant as his material claims revolve around him being picked up by Naxalites whilst at the bus stop when travelling to or from work and them being interested in extorting money from him. If his evidence to the Tribunal is accurate and he was not working after 2009, then he would not have been at the bus stop travelling to and from work and would not have been earning a salary. This raises concerns in relation to his credibility and the veracity of his claims.
(b)the applicant had provided inconsistent accounts of having being stopped by people in civilian clothing, and being asked to produce identification documents (CB 158 at [23] to [36]);
(c)inconsistencies in the applicant’s account of an incident said to have occurred in July 2013, in which he was allegedly threatened at a bus stop by people who were part of the Naxalites group (CB 158 to 159 at [27] to [28]) (bus stop incident);
(d)the applicant had raised new claims during the second Tribunal hearing, including that he started receiving telephone calls twice monthly during which he was asked for money. The applicant claimed to have withdrawn half his salary in cash and to have given it to the people who allegedly made the calls for four or five months. The Tribunal considered the applicant’s failure to mention those claims in his visa application (together with the general implausibility of the claims) to be significant (CB 159 at [29]-[31]);
(e)inconsistencies in the applicant’s account of the Naxalites frequently telephoning him and that (at the second Tribunal hearing) he failed to refer to claims he had made that when he avoided answering the calls, the Naxalites had gone to his apartment, bashed him, slapped him, threatened and harassed him (CB 159 at [32]);
(f)the fact that the applicant claimed to have been abducted by the Naxalites who threatened to kill him, which the Tribunal found to be implausible given that he was then simply released. Specifically, the Tribunal noted (CB 159 to 160 at [33] to [34]):
…if this violent group of criminals had gone to the trouble of abducting him after their previous attempts and methods of coercion had failed, it is highly unlikely that they would have then just let him go with a threat.
(g)that when the Tribunal asked why the applicant had not changed his mobile telephone number to preclude the Naxalites from contacting him, his explanation was that he had had the telephone number for a long time (CB 160 at [34] to [36]);
(h)the applicant had not provided any plausible reason as to why he did not report the treatment he had allegedly suffered from the Naxalites to either the police, his friends or family (CB 160 at [37] to [38]);
(i)the applicant’s conduct was inconsistent with the claims he had made, insofar as he held a valid visa which would have allowed him to travel to Australia between July 2013 and December 2013, yet which he did not use. Further, when the applicant did return to Australia on 1 February 2014, his conduct was neither “spontaneous” nor “unplanned” as claimed (CB 161 at [42]);
(j)the applicant had not sought protection from authorities in India which was something the Tribunal considered would have been expected in such a situation (CB 161 to 162 at [43] to [47]); and
(k)that the applicant’s conduct in Australia was not consistent with his claims, including the delay in the making of the protection visa application, which occurred one day before his Visitor visa expired (CB 162 at [48]).
The Tribunal had regard to country information from DFAT regarding the Naxalites, and at [52] to [53] (CB 163) concluded as follows (emphasis added) (footnote omitted):
This country information indicates that an established system exists amongst Naxalites whereby a Naxalite cadre can ask to leave and have the request granted. This tends to indicate that the Naxalites do not seek to force members to remain in their group against their wishes and allow them to leave the group if they wish to do so. In these circumstances, it is highly unlikely they would have used threats and violence to force the applicant to join their group when he clearly did not wish to do so and would not have been a willing participant.
Further, other country information refers to Naxalites recruiting children and the UN has reported on its concerns in this regard. The applicant was aged 29 years at the time he claims the Naxalites were trying to recruit him. There is no apparent reason why he was of such interest to the Naxalites that they would have deviated from their practise of recruiting children and pursued him. His evidence is that they wanted him to join their group and not just extort money from him.
Relying on the country information extracted above, the Tribunal had serious doubts about the credibility of the applicant’s claims for protection in his visa application (CB 163 at [54]) and found on the basis of all the evidence before it that the applicant was not a witness of truth and that he had fabricated his claims in relation to the Naxalites for the purpose of obtaining the visa (CB 164 at [61]).
The Tribunal was not satisfied that the applicant met either the refugee or complementary protection criteria, and affirmed the decision of the delegate to refuse the application for the visa (CB 166 at [74]).
APPLICATION TO THIS COURT
The applicant commenced these proceedings by an application to show cause filed on 21 June 2019, at which time he was unrepresented. The matter was initially docketed to another Judge of the Court (first primary Judge). On 18 July 2019, a Registrar of the Court made orders including for the preparation of a Court Book by the first respondent’s solicitor and an opportunity for the applicant to file an amended application and any additional evidence thereafter. The proceedings were to be listed for callover before the first primary Judge on a date to be fixed and advised administratively to the parties. The proceedings were instead later placed in the central migration docket.
On 31 August 2023, the proceedings were called-over by a Registrar of the Court on which occasion the applicant appeared by telephone. Procedural orders were made again, including for an additional grant of leave for the applicant to file an amended application 28 days before any hearing. On 6 March 2024, the proceedings were docketed to me and I made orders on that date listing the matter for hearing on 29 April 2024, granting the applicant leave to file any amended application by 25 March 2024, and requiring that the applicant and first respondent file written submissions 14 and 7 days (respectively) before the hearing.
On 22 March 2024, a Notice of Address for Service was filed for the applicant to reflect the fact that he had become legally represented. On 25 March 2024, an Amended Application was filed within the time allowed by the most recent grant of leave. Written submissions were also filed by the parties as ordered. The hearing date was later re-scheduled (including to meet the convenience of the parties’ respective representatives) to 2 May 2024.
At hearing, the parties were each represented by their respective Counsel, each of whom made oral submissions in addition to those filed in advance of the hearing. I have been assisted by all the submissions made for the parties.
At the hearing, the Court Book which had been prepared for the first respondent was tendered by the applicant’s Counsel and marked Exhibit “1A”. For the applicant was read, without objection, an Affidavit of Toufic Laba Sarkis made on 17 July 2019 which annexed a transcript of the second Tribunal hearing (Transcript Affidavit).
Grounds of review
The Amended Application upon which the applicant relies contained three grounds of review at the time of filing. At the commencement of the hearing, Counsel for the applicant confirmed that ground 2 was no longer pressed. Grounds 1 and 3 of the amended application which remain for consideration, are as follows:
Ground 1 - The Administrative Appeals Tribunal ("Tribunal") at [28] of its decision dated 26 May 2019 stated, as one of 10 reasons for finding that the applicant was not a credible witness, that during a hearing on 6 December 2018 he gave a "different version of events" concerning an incident in late July 2013 including that the people in the car into which he was dragged told him "that they had guns". The basis for the Tribunal's adverse credibility concern was that the "Tribunal would have expected [the applicant] to have mentioned [the presence of guns] in his visa application it if had in fact occurred". However, the applicant referred to the presence of guns in the protection visa application (CB 46.5), although did not refer to the presence of guns during the 6 December 2018 hearing: see T16. The Tribunal made a mistake about the evidence and then made an adverse credibility finding against the applicant based on its mistake. This is a jurisdictional error.
…
Ground 3 - The Tribunal found, for 10 reasons set out in its decision, that the applicant was not a credible witness. A number of reasons on which the Tribunal relied involved matters which the Tribunal did not put to the applicant and give him an opportunity to comment. Specifically:
a) The Tribunal at [22] noted "inconsistencies in the applicant's evidence in relation to his employment which "are significant".
b) The Tribunal at [20] noted "a number of inconsistencies in the applicant's evidence about [an] incident" in May 2013.
c) The Tribunal at {28) referred to a "different version of events" concerning an incident in late July 2013.
d) The Tribunal at [29] referred to a "new claim" made by the applicant.
The Tribunal's failure to put these matters to the applicant for comment, in the particular circumstances, involved a denial of procedural fairness and a breach of the Tribunal's obligation under s 425 of the Migration Act to raise with the applicant at the hearing "issues arising in relation to the decision under review"
Ground 1
The first ground contends that the Tribunal made an error at [27] to [28] of its decision (CB 158 to 159) which in turn infected its adverse credibility findings about the applicant. Paragraphs [27] to [28] of the decision therefore warrant setting out in full:
Third, in his visa application, the applicant claimed that at the end of July 2013 he was at the bus stop when a car stopped in front of him, two people got out of the car and dragged him into the car. He claimed that there were five people in the car. He claimed that the driver of the car, who was the person who had telephoned him a couple of times, told him that they would not harm him, knew a lot about him and his family, told him he had to be loyal to them, that they wanted him to join them and they would let him know when the time came. He claimed that he was then questioned about his salary and they demanded that he contribute half his salary to them. He claimed that he told them that if they spared his life he would do as they asked. He claimed that they told him that they had people in every department and if he informed the Police he would be responsible for the consequences. He claimed that they then drop him off at the bus stop.
During the second hearing on 6 December 2018, the applicant gave a different version of events. He claimed that during this incident, in addition to the above, he was told that they had guns, was told to keep quiet and was slapped and kicked. The Tribunal is of the view that being threatened with a gun or guns and being slapped and kicked after being forcibly dragged into a car is not something one would forget easily. The Tribunal would expect him to have mentioned this in his visa application if it had in fact occurred. His failure to mention this in his visa application raises concerns in relation to his credibility and the veracity of his claims.
In relation to the first ground, the applicant drew the Court’s attention to a statement which forms part of his protection visa application (CB 46) in which he claimed that (errors in original):
…Two people came out of [the car] and dragged me in to the car they were 5 members and told me that they have Guns if I shout they will kill me…
The applicant says the Tribunal’s credibility assessment placed significant weight on the anterior findings from [27] to [28] of the reasons for decision such that they “flowed into the decision or affected the decision in a not immaterial way” being the Tribunal’s finding at [61], citing Acuna Plaza v Minister got Immigration, Citizenship and Multicultural Affairs (No 2) (2019) 164 ALD 258 (Acuna Plaza) at [17] per Allsop CJ.
The Tribunal’s finding at [61] (CB 164) is as follows:
Having considered all the claims and the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his claims in relation to the Naxalites for the purpose of obtaining a Protection visa.
The first respondent accepts that the Tribunal made a factual error in its description of the bus stop incident, insofar as the statement extracted at [19] above did, clearly make reference to guns, however, says that this error is not jurisdictional because it was not “sufficiently central” (Cf Acuna Plaza (supra) at [28]).
Consideration
At hearing, a discussion between the Court and Counsel for the applicant as to the penultimate sentence of [28] of the Tribunal’s decision took place. In particular, about the Tribunal’s (possibly infelicitous) use of the word “this” (see [20] above).
The description of the applicant’s claim at [28] of the Tribunal’s decision comprises two elements, namely:
(a)that the people involved in the bus stop incident told the applicant they “had guns”, and
(b)that the applicant was “slapped and kicked”.
Despite the first respondent’s concession at [22] above, a factual error in respect of ground 1 only arises if the word “this” in the penultimate sentence of [28] of the decision is taken as referring to the part of the claim relating to guns, and not the claim to have been slapped and kicked. Counsel for the applicant submitted that the “more natural or sensible” reading of the word “this” in [28] is that it collectively refers to both aspects of the claim (i.e., relating to the gun and to being slapped and kicked).
The first respondent submitted that the essence of [28] is that the applicant provided (indisputably) inconsistent accounts of the bus stop incident as between his visa application and the second Tribunal hearing and that interpreting “this” as encompassing the allegation of being slapped and kicked is an entirely natural reading of the paragraph. This submission was made by reference to the approach taken in XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ, requiring a beneficial construction of the Tribunal’s reasons.
In Acuna Plaza (supra) Allsop CJ said as follows at [17] and [28]:
[17] On behalf of the appellant, Mr Colditz referred in particular to a series of cases in this court, both single judge appeal and Full Court, which have sought to articulate the matter. I refer to the influential decision of Wigney J in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516; 69 AAR 210, as well as CQG15v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496; Muggeridgev Minister for Immigration & Border Protection [2017] FCAFC 200; 255 FCR 81; Johnsonv Minister for Home Affairs [2018] FCA 1940 and Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1, not to mention Li in the High Court and Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 in the High Court. Mr Colditz helpfully summarised the matter when he said that it is enough for the finding to have been carried into the decision, that it flowed into the decision or affected the decision in a not immaterial way, or is sufficiently part of the reasoning to the outcome, or is a finding on which the ultimate conclusion was predicated, not being severable for the decision to be seen as tainted jurisdictionally.
…
[28] In these circumstances, I have come to the view, assisted by the submissions of counsel, that the error that was made was sufficiently central within the meaning of the authorities to which I was taken as to reflect jurisdictional error in the Tribunal. For these reasons, I will allow the appeal and set aside the orders of the Federal Circuit Court made on 18 June 2018. In their place, it will be ordered that the decision of the Administrative Appeals Tribunal dated 1 September 2017 be set aside with costs, and the matter remitted to the Tribunal for rehearing. The order for costs will be the first respondent pay the appellant’s costs of the appeal, which pursuant to the previous order will include the costs of the extension of time application.
On balance, the Court is of the view that on a fair and contextual reading of the Tribunal’s decision, the Tribunal was referring to the applicant’s evidence of being slapped and kicked in the penultimate sentence of [28] of its reasons. As such, there is no factual error on the part of the Tribunal and the ground cannot succeed. However, if I am wrong in this conclusion, and there is a factual error on the part of the Tribunal, I accept the first respondent’s submission that it was not material to the Tribunal’s finding at [61].
Firstly, I agree that it was open to the Tribunal to conclude the applicant had provided inconsistent accounts of the bus stop incident. By the applicant’s own submission[1] if, by [28], the Tribunal was making the cumulative reference to guns and kicking/slapping, the latter was still missing from the protection visa claims in which the applicant referred to being threatened with guns, yet made no mention to having been slapped and kicked.
[1] see [25] above
In this respect, the first respondent submitted that, even if the Tribunal had made the alleged factual error, there is no realistic possibility that this could have altered its conclusion that the applicant’s inconsistent accounts of the bus stop incident gave rise to “concerns in relation to his credibility and the veracity of his claims”. I agree.
Secondly, in light of the Tribunal’s other reasons for not accepting the applicant as being a truthful witness (see [10] above), together with its consideration of the country information which undermined the applicant’s claims regarding the Naxalites, I am satisfied there is not a realistic possibility this could have changed the Tribunal’s conclusion at [61] and resulted in a different decision having been made.
Accordingly, ground 1 is not made out.
Ground 3
By the remaining ground, the applicant alleges the Tribunal breached its procedural fairness obligations by failing to put to him 5 of 11 reasons which contributed to its conclusion that the applicant not a credible witness. Those 11 reasons are set out at [8(a)] to [8(k)] above.
The ground takes specific issue with the following paragraphs of the Tribunal’s decision (see 8(a)] to/and [8(e)] above):
(a)[22], specifically the Tribunal’s notation of inconsistencies in the applicant's evidence in relation to his employment, which it said were "significant”;
(b)[26], where the Tribunal recorded "a number of inconsistencies in the applicant's evidence about [an] incident" in May 2013;
(c)[28], being the Tribunal’s reference to a “different version of events” concerning the bus stop incident;
(d)[29], where the Tribunal referred to a new claim being made by the applicant; and
(e)[32], in which the Tribunal relied upon an inconsistency in the applicant’s evidence about the number of times Naxalites came to his apartment.
The applicant says that a review of the transcript annexed to the Transcript Affidavit reveals the Tribunal did not put the matters at [34] above to the applicant during the second Tribunal hearing and that, by failing to do so, it breached the specific obligation under s 425 of the Act to raise with the applicant “issues arising in relation to the decision under review”, relying on SZBEL v Minister for Immigration Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [34] to [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, where the High Court stated:
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The applicant says that in order to comply with its obligations under s 425(1) of the Act, the Tribunal needed to provide him with the opportunity to satisfy its specific reservations about his case at a greater level of granularity or minutiae than it did, citing ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [24] per Bromberg J. In practical terms the applicant says that, rather than putting its broad credibility concerns to the applicant (which the applicant acknowledges did occur), the Tribunal ought to have gone a step further by putting more squarely to him the issues dispositive of the review.
The applicant says the alleged error is material because had the Tribunal put to him the inconsistencies, there is a realistic possibility the applicant could have provided explanations for them, and alleviated the Tribunal concerns thereby resulting in a different decision being made.
The first respondent says that ground 3 is misconceived as a matter of law, citing SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 (SZJUB) per Bennett J, in which her Honour found as follows at [25]:
The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue (SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it.
Consideration
I accept the first respondent submissions, relying on SZJUB, that s 425 of the Act requires only that the Tribunal inform the applicant of the issues arising in relation to the decision under review, and that the Tribunal is not required to put to the applicant each of the factual matters which go to the issue arising in relation to the decision under review. In the instant case, the Tribunal clearly informed the applicant that his credibility (and the veracity of his claims) were in issue, and asked him questions about each of the matters referred to at [34] above.
A review of the Transcript Affidavit also records the following:[2]
Tribunal: I have a number of concerns about your case that I want to talk to you about. I will tell you what my concerns are and I will give you an opportunity to respond. I have some difficulty with the credibility of your claims.
[2] Transcript Affidavit, Annexure “A” at T25.10 to T25.13
I accept the first respondent’s submission that (in conjunction with the statement extracted in the preceding paragraph) the Tribunal’s questions to the applicant at the second Tribunal hearing related (inter alia) to:
(a)the applicant’s employment history;
(b)the May 2013 and bus stop incidents; and
(c)the new claim made by the applicant at hearing about being extorted for money.
I am satisfied that the applicant was sufficiently on notice of the issues arising which were dispositive of the review, in the sense identified in each of SZBEL and SZJUB. Section 425 of the Act required the Tribunal to give the applicant notice of the dispositive issues. It was not required to provide a running commentary of its thoughts about them: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88] to [89] per Emmett, Weinberg and Lander JJ.
Accordingly, ground 3 is also not made out.
CONCLUSION
The applicant has failed to establish error. Absent a jurisdictional error the decision of the Tribunal is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 November 2024
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