CPP15 v Minister for Immigration

[2017] FCCA 2417

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPP15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2417

Catchwords:
MIGRATION – Protection visa – application for judicial review – whether the Tribunal complied with s.425 of the Migration Act 1958 (Cth) because it failed to comply with s.424 of the Act – whether different decisions by the Tribunal for two other applicants for protection visas who were said to have provided the same documentation constituted jurisdictional error – whether interpretation at Tribunal hearing denied the Applicant a right to a fair hearing – held no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A, 424AA, 425.

Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: CPP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2688 of 2015

Judgment of: Judge Jones

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Melbourne

Delivered on: 9 October 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr Brown of Australia Government Solicitor

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Applicant’s Amended Application for judicial review filed on

   
   

   14 July 2017 is dismissed.

2. The Applicant pay the costs of the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2688 of 2015

CPP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”), dated 9 November 2015, which affirmed the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”) dated 10 December 2013, refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). A copy of the Tribunal’s decision is at Court Book (“CB”) 258-270.

2. The material before the Court is the CB and a Supplementary Court Book (“SCB”), the Minister’s Outline of Submissions, the Applicant’s Amended Application filed on 14 July 2017 and the Applicant’s affidavit filed on 4 December 2015.

Background

1. The Applicant is a 29 year old Christian Tamil national of Sri Lanka (CB 29-30), who first arrived in Australia by boat at Cocos Island on

   
   

   29 June 2012 (CB 137).

2. The Applicant made his application for the visa on 5 November 2012 (CB 14-82), supported by a Statutory Declaration that detailed his claims (CB 49-51).

3. The Applicant was interviewed by a delegate of the Minister on

   
   

   11 September 2013 (CB 112-130), who refused to grant the visa on

   
   

   10 December 2013 (CB 136-151).

4. On 16 December 2013, the Applicant applied to the Tribunal for review of the decision to refuse his visa application (CB 153-164). On 27 August 2015, and again on 18 September 2015, the Applicant appeared before the Tribunal to give evidence and present arguments, assisted by an interpreter in the Tamil and English languages, and represented by a migration agent (CB 242 and 252). Oral evidence was also given by Mr K (CB 252), who claimed to be from the same village in Sri Lanka as the Applicant (CB 264 at [24]).

The Applicant’s Claims

1. In the Applicant’s Statutory Declaration that was contained in his application for the visa, the Applicant claimed that (CB 49-51):

   a)

   he was abducted by bodyguards sent by a political minister,

   
   

   Mr M. Mr M’s daughter had eloped with a boy that the Applicant knew, as the boy “had a tailor shop beside a welding shop [the Applicant] worked in”. The Applicant claimed that Mr M suspected that he knew about the pair eloping and had helped them; and

   b)he was assaulted by the bodyguards, but later while they were driving, they were stopped by the police and taken to the police station. The bodyguards were charged by the police, and a court case was subsequently brought against the bodyguards. The Applicant claimed that he had been threatened by the bodyguards that he would be killed if he did not drop the court case, and he feared that he would be harmed or killed by the bodyguards if he returned to Sri Lanka.

2. In a submission from the Applicant’s migration agent received by the Tribunal on 31 March 2014 (CB 169-230), the Applicant also claimed that he would be harmed upon return to Sri Lanka because of his race and imputed political opinion (pro-Liberation Tigers of Tamil Eelam (“LTTE”)), his religion and his membership of the particular social groups failed asylum seekers from Western countries and young Tamil males (CB 171 and 193).

The Tribunal Decision

1. The Tribunal expressed the following serious doubts about the Applicant’s central claim that he was abducted by bodyguards sent by a political minister, Mr M:

   a)the Applicant claimed at the Tribunal hearing that he had been abducted on 29 April 2009, but his previous evidence before the delegate and in the written submissions made on his behalf had been that the abduction occurred on 31 July 2009 (CB 141 and 171). The Tribunal did not accept the Applicant’s explanation that he could not recall the month in 2009, in circumstances where he was allegedly abducted and beaten. Further, there was purportedly an article about the incident published in a Sri Lankan newspaper (“the newspaper article”) on 2 August 2009, that the Applicant relied on at the Tribunal hearing (CB 262 at [18]) (referred to in more detail below). While the witness, Mr K, also said that the incident occurred in April 2009, this was also inconsistent with the Applicant’s earlier evidence (CB 264 at [24]);

   b)the Applicant’s evidence about the incident was vague and inconsistent. Prior to the Tribunal hearing, the Applicant’s evidence had been that he was abducted because his abductors were looking for Mr M’s daughter, and suspected that she had eloped with the Applicant’s friend, Mr N, and that the Applicant had assisted them to do so. At the Tribunal hearing, the Applicant made no mention of being suspected of assisting Mr N to elope with Mr M’s daughter (CB 262 at [19]);

   c)

   the Applicant gave different names for a man he recognised as one of two men who had pushed him into a white van, calling the man “Suran” to the delegate, and “Sunil” in the police complaint and to the police. Further, the Applicant’s witness statement made to the police regarding the incident and submitted to the Department of Immigration and Border Protection (“the Department”) noted that these men had asked him where “the Infant Jesus Church” was, before grabbing him (SCB 1), whereas the Applicant told the Tribunal that they had asked him where

   
   

   Mr T lived (CB 262-263 at [20]);

   d)

   the Applicant had worked next door to Mr N’s shop for one year from 2006, but the alleged abduction did not occur until 2009. The Tribunal had difficulty accepting that the Applicant would be abducted as someone who allegedly had knowledge of Mr N or Mr M’s daughter or the elopement, when he had not worked near Mr N for some time, and his only association with Mr N since ceasing work at the welding shop was as a customer or acquaintance

   
   

   (CB 263 at [21]);

   e)

   the Applicant’s account of what happened during the abduction differed before the Tribunal from the account that he gave at the interview with the delegate (as set out in the delegate’s decision) and from his statement made to police regarding the incident

   
   

   (CB 263 at [22]); and

   f)the Applicant’s evidence at the Tribunal hearing, that he was abducted into the van by two men near a shop, was inconsistent with the newspaper article that the Applicant submitted to the Tribunal (with a copy of the translation) after the hearing, which stated that four persons claiming to be intelligence police kidnapped them at their houses and took them away for questioning (CB 263 at [23]).

2. The Tribunal further considered the submissions made by the Applicant’s migration agent at the Tribunal hearing that, in considering the concerns regarding the Applicant’s credibility, the Tribunal should take into account the Applicant’s mistrust of authorities. The Tribunal did not accept this submission, given that it was the authorities (the police) in Sri Lanka who allegedly saved him (CB 264 at [25]).

3. For these reasons, the Tribunal did not accept that the Applicant had been abducted as claimed, or that he had been mistreated in the white van, or that he was involved in any court case, or that people had come to his village asking for him. The Tribunal found the Applicant’s claims to be not credible, and consequently it found that he did not face a real chance of serious harm if he returns to Sri Lanka by reason of the alleged abduction incident (CB 264 at [26]).

4. The Tribunal relied on country information in finding that the Applicant did not have a profile that would attract adverse interest from the authorities (CB 265 at [28]), and, based on his past experiences, individual circumstances and country information, the Tribunal did not accept that the Applicant faced a real chance of serious harm by reason of his ethnicity, including being imputed with a pro-LTTE opinion based on his Tamil ethnicity or by reason of his membership of the particular social group “young Tamil males” (CB 265 at [29]).

5. The Tribunal noted that the Applicant confirmed that he did not fear harm by reason of his religion (CB 266 at [30]), and, having regard to country information, was not satisfied that the Applicant would face a real chance of serious harm for this reason (CB 266 at [31]).

6. The Applicant expressed fear of being jailed on account of his illegal departure, and said that he did not know what the authorities would do on his return to Sri Lanka (CB 266 at [32]). The Tribunal noted that the Department of Foreign Affairs and Trade (“DFAT”) had assessed that all Sri Lankan returnees are treated in accordance with standard procedures upon return, regardless of their ethnicity or religion. The Tribunal stated (CB 266 at [33]):

   33. The Tribunal has considered whether the applicant will face persecution as a result of his illegal departure from the country, if returned to Sri Lanka. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015,which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning at the airport (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the …Magistrate's Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at …prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport. The Tribunal does not accept on the information before it that the applicant would face mistreatment from the authorities whilst he is held in remand given that he does not have an adverse profile.

7. The Tribunal considered country information regarding the operation of the Immigrants and Emigrants Act 1949 (Sri Lanka), which it considered to be a law of general application that is enforced

   
   

   non-selectively (CB 267 at [36]).

8. On the basis of this country information, the Tribunal put to the Applicant that most returnees were granted bail based on personal recognisance, with a family member to stand as guarantor. The Tribunal noted that “…the applicant has his parents and elder sister in Sri Lanka who can stand as guarantor for him and there is nothing to suggest that they would not do so…” (CB 267 at [34]).

9. As there was no evidence before the Tribunal to suggest that someone from his family would not stand as guarantor, the Tribunal was satisfied that the Applicant would not face extended administrative detention upon return to Sri Lanka (CB 267 at [34]). The Tribunal stated it had drawn to the Applicant’s attention the capacity of his family to stand as guarantor for him. Further, the Tribunal found any chance of the Applicant being sentenced to imprisonment to be remote, and that the Applicant would likely be required to pay a fine. The Tribunal stated it did not accept that the Applicant would not be in a position to pay a fine, given that he has family in Sri Lanka who could financially assist him to pay the fine (CB 267 at [35]).

10. Given the Applicant’s profile as someone who has not been of interest to the authorities in the past for any reason, including having suspected links with the LTTE, the Tribunal found the Applicant would not face a real chance of being detained after being released into the community (CB 267 at [38]). Further, as a failed asylum seeker returning to Sri Lanka, the Applicant was found not to have a profile that would attract adverse attention from the authorities (CB 268 at [39]-[41]).

11. In considering the Applicant’s complementary protection claims, the Tribunal considered the circumstances which would befall the Applicant if detained briefly in prison before being released on bail. The Tribunal also had regard to Ministerial Guidelines (the Procedures Advice Manual (“PAM3”)) regarding the complementary protection provisions of the Migration Act 1958 (Cth) (“the Act”). The Tribunal recognised that Sri Lankan prison conditions were poor, but did not accept that there was the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation on prisoners, such that complementary protection obligations would arise. The Tribunal also did not accept that the Applicant would be singled out for mistreatment or suffer significant harm during any period that he may be detained in remand or subsequently (CB 269-270 at

    
    

    [48]-[50]).

12. Having assessed the Applicant’s individual circumstances and the independent country information cumulatively, the Tribunal concluded that the Applicant did not meet the criteria in sub-s.36(2) of the Act for the grant of the visa, and affirmed the delegate’s decision (CB 270 at [51]-[55]).

Judicial Review

1. In his Amended Application filed on 14 July 2017, the Applicant specified the following grounds of judicial review:

   1.  The Tribunal fell into jurisdictional  error in failing to put findings to the applicant for comment that form part of the reasons refusing the applicant’s claims thereby failing to give him an opportunity to be heard in accordance with s425 of the Act.

   Particulars

   (a)     At paragraph 23 the Tribunal considered the copy of the article with translation from [the newspaper] dated 2 August 2009 submitted by the applicant after the hearing:

   i.   the Tribunal noted that the details included in the article were not consistent with the applicant’s evidence at the hearing;

   ii.  while the applicant claimed that he was abducted when a van stopped on the side of the road, after he had left a shop, and two men got out of the van and asked him where [Mr T] lived and then put him into the van, the articles stated that four persons claiming to be Intelligence police went to the houses of the men kidnapped and took them away saying that they wanted them for questioning; and

   iii.         the Tribunal failed to issue a s424A natural justice letter for the applicant to comment on the inconsistencies before making the decision to affirm the decision not to grant a protection visa.

   (b)     At paragraph 24 the Tribunal had regard to the evidence provided by the witness:

   i.   The Tribunal noted that it was inconsistent with the applicant’s earlier evidence and the independent evidence submitted by the applicant as to the timing of this particular evident [sic] and gave the evidence provided by the witness little weight; and

   ii.  the Tribunal failed to issue a s424A natural justice letter for the applicant to comment on the inconsistencies before making the decision to affirm the decision not to grant a protection visa.

   (c) At paragraph 25 the Tribunal considered the applicant’s adviser’s submissions made at the conclusion of the hearing:

   i.   The Tribunal was unclear as to why the applicant would have a lack of trust of the authorities given that the applicant was allegedly saved by the police when he was allegedly abducted and the police pursued a case against his alleged abductors;

   ii.  the Tribunal did not accept that the factors raised by the applicant’s adviser account for the discrepancies in the applicant’s evidence as discussed above, or dispels the Tribunal concerns regarding the credibility of his claims; and

   iii.         the Tribunal failed to issue a s424A natural justice letter for the applicant to comment on the factors raised by his adviser before making the decision to affirm the decision not to grant a protection visa.

   (Emphasis in original)

2. The Applicant was self-represented and assisted by an accredited interpreter made available by the Court in the Tamil and English languages. Prior to the commencement of the hearing, as the Applicant advised that he had not taken steps to have the Minister’s Outline of Submissions interpreted to him in Tamil, the Applicant was afforded the opportunity to have the submissions interpreted for him by the interpreter.

3. I explained to the Applicant that the function or the task of the Court was to decide whether the Tribunal has, in conducting the hearing and in making its decision, made a serious legal mistake (another phrase for jurisdictional error). I explained to him that my function was not to decide whether or not he should be granted the visa (another means of attempting to describe merits review).

4. Emphasising that I was not being critical, I asked the Applicant whether he had written his grounds of review himself, or whether someone had assisted him. The Applicant said that a lawyer prepared the grounds, and that these had been interpreted for him.

5. I then asked the interpreter to interpret each sub-section of the grounds to the Applicant, following which I asked the Applicant to explain why he thought the Tribunal was wrong.

6. It was immediately apparent (and I again say this without any criticism of the Applicant) that the Applicant’s oral complaints had a tenuous connection with the specified grounds of review in his Amended Application.

7. I will deal first with the Applicant’s oral submissions.

The Applicant’s oral submissions

Same documents provided in other Tribunal decisions

1. The Applicant’s first challenge to the Tribunal decision is that the three other victims of the abduction were in the same detention centre as he was, and he submits that two of those victims provided the same documentation as he did to the respective Tribunal Members. Each of those two detainees were granted a protection visa, however, the Applicant was not.

2. The documents the Applicant referred to were:

   a)a translated copy of the newspaper article dated 2 August 2009 (SCB 24-26); and

   b)a translated statement of a witness in relation to the Applicant’s alleged abduction in a white van (SCB 1).

3. The Applicant said that these documents were not fake documents, yet the Tribunal made very different decisions in relation to the other alleged victims of the abduction.

4. The Applicant said that the Tribunal had afforded him the opportunity to have the witness who gave the witness statement attend and give evidence to the Tribunal. However, the Applicant had been unable to locate the whereabouts of the witness and consequently he did not appear before the Tribunal.

1. The fact that two other detainees provided the same documentary evidence as the Applicant to another (or other) Tribunal(s) and were granted protection visas, whereas the Applicant was not granted the visa, may (and clearly did) appear grossly unfair to the Applicant.

2. The difficulty with the Applicant’s argument, however, is that there is nothing before the Court to demonstrate the nature of those other detainees’ claims and their evidence before the Tribunal(s).

3. As is evident from the Tribunal’s decision record, the Tribunal found the Applicant not to be a credible witness, and a reason for rejecting his claim that he was abducted (for the reasons he gave) was the numerous inconsistencies between the evidence he gave at the Tribunal hearing and in proceedings leading up to the Tribunal hearing, and subsequent submission.

4. The Applicant acknowledged in oral submissions that when the Tribunal asked him about the dates, he could not answer directly because the incident occurred four or five years ago. This inconsistency, as discussed in the Tribunal decision, is addressed at [9](a) above.

5. In my opinion, the Tribunal’s findings were reasonably open to it. The findings regarding the Applicant’s credibility do not disclose jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[44]. Further, no illogicality or unreasonableness arises from the Tribunal’s reasoning or the outcome of its decision: Minister for Immigration and Citizenship v Li [2013] HCA 18 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.

6. Accordingly, I find that no jurisdictional error arises on this challenge to the Tribunal decision.

Interpretation

1. The Applicant complained that he believed from the Tribunal decision record that the interpreter at the second Tribunal hearing on

   
   

   18 September 2015 did not adequately interpret the evidence that he provided. Mistranslations may adversely affect the Applicant’s right to a fair hearing.

2. When asked what he thought the errors were, the Applicant gave two examples of errors in the interpretation.

3. Firstly, the Applicant said that the use of the word “minister” in reference to the person Mr M (whose bodyguards he alleged abducted him) was wrong. The Applicant said Mr M was a rich and influential person, and not a minister.

4. The use of the word “minister” appears to have its genesis in the translation of the Applicant’s Statutory Declaration attached to his application for the visa.

5. At the end of the Statutory Declaration, there is essentially a jurat stating that the Statutory Declaration was translated by a person proficient in the English and Tamil languages (CB 51). In the Statutory Declaration it is said that “[the Applicant] had an issue with a political minister called [Mr M]” (CB 49).

6. When this was pointed out to the Applicant, he asserted that the interpreter who interpreted the Statutory Declaration was wrong.

7. It is relevant to note that in the submission made to the Tribunal by the Applicant’s migration agent on his behalf on 28 March 2014, it is stated (CB 171):

   The Applicant claims that the individuals who tried to abduct him work for a local UNP minister, [Mr M], one being his bodyguard. The Applicant explains that the MP was the father of a girl the Applicant knew had eloped with one of his friends. The Applicant instructs that the minister suspected that the Applicant knew that his daughter was going to elope and the Applicant helped her and his friend do so.

8. Clearly, the reference to Mr M as a “minister” did not arise only at the Tribunal hearing. It began with the Applicant’s statutory declaration and continued in the submissions made on his behalf.

9. In my opinion, the alleged error does not affect the gist of the Applicant’s claims, nor does it affect the Tribunal’s consideration of the Applicant’s claim that he was abducted and beaten because Mr M believe that he knew about his daughter’s plan to elope, and that he assisted her and Mr N in this regard.

10. I am satisfied that no jurisdictional error arises from the Applicant’s allegation of this mistranslation made during the interpretation of the Applicant’s evidence at the Tribunal hearing.

11. The second error of interpretation claimed by the Applicant occurred when he was said to have given inconsistent evidence; that one of the men who got out of the white van was called “Suran” or “Sunil” (CB 262 at [20]):

    20.…The Tribunal notes in the delegate’s decision, it was stated that the applicant identified one of the two men who got out of the van which he was abducted in, as Suran…However, in the police complaint he had identified the person as Sunil…

12. Here, the Tribunal is identifying the inconsistency between the Applicant’s evidence at interview with the delegate in which he identified one of the men as “Suran” (CB 120), and in the police complaint in which he identified the person as “Sunil” (SCB 1). It cannot constitute an error in interpretation at the second Tribunal hearing.

13. As the Applicant was unable to identify any further errors in the translation, which he said occurred at the second Tribunal hearing, I find that no jurisdictional error arises because of the inadequacy of interpretation.

The Applicant’s written grounds of review

1. The Applicant was invited pursuant to s.425 of the Act to appear before the Tribunal to give evidence and to present arguments relating to the issues with the decision under review. Sections 424AA and 424A of the Act impose requirements upon the Tribunal to provide information to an applicant that is considered to be the reason, or form part of the reason, for affirming a decision under review.

2. The Applicant’s written grounds of review allege a failure of the Tribunal to comply with s.425 of the Act because it failed to comply with s.424A of the Act.

3. Each of the particulars of the grounds of review in the Amended Application concern the obligations imposed upon the Tribunal pursuant to s.424A of the Act.

4. Section 424A of the Act provides:

   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).

   (Emphasis in original)

5. The Tribunal is not obliged to give the requisite particulars pursuant to sub-s.424A(1) of the Act if the Tribunal has done so in accordance with s.424AA of the Act: see sub-s.424A(2A) of the Act.

Ground of review 1(a)

1. Ground of review 1(a) alleges jurisdictional error because the Tribunal failed to comply with s.424A of the Act with respect to information contained in a translated version of the newspaper article dated 2 August 2009 (SCB 24-26) submitted by the Applicant after the Tribunal hearing (CB 263 at [23]).

2. The newspaper article is considered by the Tribunal as follows (CB 263 at [23]):

   23. The Tribunal has taken into consideration the copy of the article, with translation, from [the newspaper] dated 2 August 2009, submitted by the applicant after the hearing…

3. In my opinion, the information contained in the newspaper article falls within the exception contained in sub-s.424A(3)(b) of the Act. Consequently, the Tribunal was not obliged to give clear particulars of the information to the Applicant under sub-s.424A(1) of the Act.

Ground of review 1(b)

1. Under this ground of judicial review, the Applicant alleges jurisdictional error arises because the Tribunal failed to inform the Applicant about its concern regarding inconsistencies in the Applicant’s evidence.

2. The Tribunal is not required under s.424A of the Act to put to an applicant its doubts or concerns about the inconsistencies in an applicant’s evidence to the Tribunal. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”), the High Court of Australia held as follows (SZBYR at [18]):

   Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information.” Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476‑477] that the word “information”.

   “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to 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.”

   If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

   (Footnotes omitted)

Ground of review 1(c)

1. Ground of review 1(c) concerned the alleged failure of the Tribunal to comply with s.424A of the Act with respect to information contained in the Applicant’s migration agent’s submission. The information contained in the migration agent’s submission is information provided on behalf of the Applicant, and thus falls within the exception contained in sub-s.424A(3)(b) of the Act.

2. Accordingly, I find that no jurisdictional error arises from Grounds 1(a), 1(b) and 1(c) of the Applicant’s Amended Application for judicial review.

3. It follows that I find the Tribunal did give the Applicant an opportunity to participate in the hearing, thereby complying with s.425 of the Act.

Conclusion

1. For the reasons set out in this judgment, the Applicant’s Amended Application for judicial review filed on 14 July 2017 is dismissed. An order will be made requiring the Applicant to pay the costs of the First Respondent.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 6 October 2017