CVZ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1216
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CVZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1216
File number(s): MLG 1531 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 20 December 2023 Catchwords: MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – further grounds raised orally at hearing – whether Tribunal failed to investigate applicant’s claims – whether Tribunal erred in doubting the authenticity of police report provided post-hearing – found no jurisdictional error on behalf of the Tribunal – costs awarded. Legislation: Migration Act 1958 (Cth) ss 5H(1), 5H(2), 5J(1)(a), 36(2)(a), 36(2)(aa), 412, 414, 424A, 425, 425A, 474, 476 Cases cited: Craig v South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 11 December 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Plitsch of Australian Government Solicitor ORDERS
MLG 1531 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVZ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 10 February 2020 be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $6,000.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed 10 February 2020, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 18 May 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.
CONTEXT
The applicant is a citizen of Malaysia.
On 30 March 2016 the applicant entered into Australia on an Electronic Travel Authority (Subclass 601) visa.
On 17 June 2016 the applicant applied for a Protection (subclass 866) visa (Visa).
The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)he is in a relationship with a woman 14 years his senior, and they lived together for three years while in Malaysia. Under Islamic law, such de facto relationships are not allowed without marriage, they have no plans to marry due to the age gap;
(2)if they return, their religious families will force them to marry suitors of the families’ choosing;
(3)he was not harmed in Malaysia;
(4)he did not move to another part of the country as his financial status was not stable as he did not have a permanent job and they are unable to relocate within Malaysia as their families will still confront them and punish them as they are staunch Muslims; and
(5)the police and the court will protect them if they return to Malaysia.
On 14 October 2016 the Delegate of the Minister refused to grant the applicant the Visa.
On 26 October 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address), and the mobile number “xxxxx xxx67” (applicant’s mobile) in the application for review.
On 15 August 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 27 September 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 27 September 2017 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages. At the hearing before the Tribunal, the applicant further claimed that:
(1)his partner’s brother had threatened to harm him via SMS in 2013, 2015 and 2016;
(2)he had reported the brother’s threats to police, he had lost the report, and he would ask his family to look for it;
(3)he had lost the phone on which the threatening SMS messages were stored; and
(4)the reason he had not made claims about the brother’s threats in his Visa application was because he had no evidence of them.
On 27 October 2017 the applicant emailed the Tribunal a copy of a Malaysian police report dated 14 March 2016 (Police Report) and an accompanying English translation of the Police Report dated 23 October 2017. The Police Report detailed a complaint made by the applicant in which he claimed to have received an SMS on 14 March 2016 from his partner’s brother which stated “I will kill you if you refuse to marry my younger sister” and prior to that with being beaten by the partner’s brother. The Police Report explains that the applicant’s partner does not wish to marry the applicant as she is older, and that the applicant is making the report as he is afraid he will be harmed.
Sometime before 2 May 2018, the applicant’s de facto partner, who had made her own protections claims, participated in a hearing before the Tribunal.
On 2 May 2018, the Tribunal sent an invitation to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) (Act) to comment on or respond to information (s 424A Letter). The s 424A Letter:
(1)referred to evidence given by the applicant’s partner at her separate Tribunal hearing that a police report existed but had not been brought to Australia;
(2)referred to the applicant’s evidence that he had not made any claims in his visa application that his partner’s brother had made death threats to him, nor did he make any claims that he had gone to the police and made a report;
(3)raised the applicant’s late provision of the Police Report; and
(4)explained that the Tribunal had significant doubts that the Police Report was genuine and that the threats had occurred and that if the Tribunal relied on the inconsistencies between the information and the applicant’s and his partner’s written claims, and its concerns with the late provision of the Police Report, it might find that the brother had not made threats, that the report was not genuine, and that the applicant was not a credible witness.
On 15 May 2018 the applicant provided the Tribunal with a response to the s 424A Letter. In his response, the applicant repeated his claims that he did not refer to the Police Report in his Visa application because he was unable to find a copy of the report. The applicant further explained that:
(1)he told his partner he had made a police report about her brother “right after lodging the police report”;
(2)he told his partner “the content of the police report” after his Tribunal hearing; and
(3)on 27 October 2017 a copy of the Police Report had been found by his family.
On 18 May 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 21 May 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 18 May 2018 (Tribunal Decision).
At paragraphs [11], [19]-[22] of the Tribunal Decision the Tribunal summarised the applicant’s claims (as set out in paragraph [5] and [9] above).
At paragraphs [19]-[22] of the Tribunal Decision, the Tribunal addressed the applicant’s claim to fear harm from his partner’s brother.
At paragraphs [26]-[33] of the Tribunal Decision, the Tribunal summarised the contents of the Police Report, the s 424A Letter, and the applicant’s response to the s 424A Letter.
At paragraphs [34]-[41] of the Tribunal Decision, the Tribunal made the following findings:
(a)the applicant’s response for not having made claims about his partner’s brother in his Visa application, specifically that he did not have evidence of the Police Report or threats, did not address the Tribunal’s concerns, and a lack of evidence did not prevent the applicant from making other claims in his written application;
(b)the applicant’s explanation for the why the Police Report had been provided so late in the process, namely that it had been lost prior to his arrival in Australia in March 2016, was implausible given the points at which the applicant was made aware his claims were disbelieved and the ample time his family had to find the document, which further led the Tribunal to have “serious concerns” about whether the document was genuine;
(c)given the Tribunal’s concerns about whether the document was genuine, the Tribunal could place no weight on the Police Report;
(d)other than accepting that the applicant’s partner’s family were unhappy about the applicant living with her in a de facto relationship, the Tribunal did not accept any of the applicant’s claims; and
(e)the applicant had not been harmed or threatened by anyone because of his relationship with his partner or for any other reason.
Accordingly, the Tribunal found that the applicant did not have a real chance of being persecuted if returned to Malaysia for a prescribed ground mentioned in s 5J(1)(a) of the Act, nor did the applicant have a well-founded fear of persecution and thus did not meet the refugee criterion in s 36(2)(a) of the Act. For the same reasons, the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 1 June 2018. The applicant filed an Amended Application on 10 February 2020.
The Amended Application contains the following grounds for judicial review (without amendment):
1. The Administrative Appeals Tribunal made decision on my application by affirming not to grant me a protection visa on 18 May 2018 after me attending the hearing to present arguements and evidences for my claims.
2. I was totally unaware about the hearing that the result will be decision finalising my application with a refusal but not giving a chance reinstatement. I than contacted the Tibunal to phone and seek consent but was never taken to consideration and aid that they have no more jurisdiction.
3. The Tribunal did not investigate but affirmed that I did not meet the protection visa obligation and meet the criterian of refugee. According to Migration Act 1958 the department of immigration has notify me that I have subbitted a valid application and also when I submitted to tribunal for review the tribunal acknowledged my application as valid.
4. According to Migration Act 1958 – sect 414, Tribunal must review the case in matter acordingly when the application is lodged valid under the section 412 and make a decision that has to have fairness but in my matter tribunal did not much do investigation in order to give a concluded decision. I think that tribunal did not follow the act.
5. I was not given a chance to make an assessment in relation to s5H(2) to define s5H(1) of the act and to provide the evidences for my claim and present my arguements to valid my application for protection visa with a hearing after a direction which what I attended that day.
6. Therefore, the decision made is not fair to me because I did’nt get the rights to present my arguements and provide evidences to prove of my claim accordingly.
7. I seek the court for judicial review been given again for my case.
The applicant also filed an affidavit on 1 June 2018 which annexed the Tribunal’s decision.
The Minister filed a Response on 5 July 2018. The Response contained the following ground:
The decision under review is not affected by jurisdictional error.
The Minister also filed written submissions on 24 November 2023.
The Hearing
The hearing took place on 11 December 2023.
The applicant was self-represented and was assisted by an interpreter in the Malay and English languages.
At the hearing of this matter, the applicant was invited to elaborate on the grounds for judicial review. The applicant provided no further particularisation or articulation of the grounds contained in the Application but made a number of other submissions, mostly directed at the Tribunal’s findings regarding the Police Report. As I understand those submissions, the applicant submits that:
(1)the Tribunal erred in doubting the authenticity of the Police Report, the explanation for its late submission and the omission from the applicant’s Visa Application of the alleged threats the subject of the Police Report;
(2)he did not know why the Tribunal did not accept the Police Report as truthful;
(3)he was not provided with an opportunity to explain to the Tribunal the delay in submitting the Police Report;
(4)all of the evidence the applicant submitted to the Tribunal was reasonable and his claims were explained;
(5)the applicant’s fear of harm if he were to return to Malaysia was genuine and would be that of anyone in the applicant’s position;
(6)asylum seeker claims were difficult and required sensitive consideration.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
Ground 1 merely states that the Tribunal made the decision not to grant the applicant the Visa following the applicant attending a hearing. Ground 1 does not assert any jurisdictional error by the Tribunal.
Accordingly, ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2
Ground 2 asserts that the Tribunal did not give the applicant an opportunity for reinstatement following its confirmation of the Delegate’s decision to refuse the Visa.
The applicant attended the hearing, gave evidence and put argument, following which the Tribunal published its decision. Accordingly, there is no basis upon which the applicant may apply for reinstatement of the application or, absent vitiation by jurisdictional error, upon which the Tribunal may reopen his case. No such vitiating error is asserted by the applicant. Accordingly, having discharged its statutory function the Tribunal was functus officio: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301. The scheme of the Act is such that any review of the Tribunal’s decision is by way of Application to this Court pursuant to s 476 of the Act.
To the extent that ground 2 asserts that the applicant was unaware the Tribunal’s decision would be final, it does not assert any jurisdictional error by the Tribunal.
Accordingly, ground 2 does not disclose any jurisdictional error on behalf of the Tribunal.
Grounds 3 and 4
Grounds 3 and 4 incorporate similar assertions and it is convenient to address these grounds together.
Ground 3 and 4 assert that the Tribunal did not investigate the applicant’s claims. It is well established that the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 (SZNVW) at [36] and [49]. As the Tribunal noted at paragraph [15] of its decision, “a decision maker is not required to make the applicant’s case for him”. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
A decision of the Tribunal will be affected by jurisdictional error where the Tribunal fails to make an obvious inquiry about a critical fact whose existence is easily ascertained and thus constructively fails to exercise its jurisdiction: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49]–[52], referring to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]. The applicant has not identified an obvious inquiry about a critical fact that the Tribunal ought to have, but failed, to make: SZNVW at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing).
Grounds 3 and 4 are misconceived to the extent that they assert that, because the applicant’s Visa application and application for review to the Tribunal were valid applications, the Tribunal was obliged to review the matter accordingly. It is evident that both the applicant’s Visa application and application for review to the Tribunal were accepted as valid, however, their validity was merely a precondition to the Tribunal’s jurisdiction to review the Delegate’s decision. Relevantly, ss 412 and 414 of the Act provide that the Tribunal is to review an application that was made validly. The mere fact that the applicant’s Visa application and application for review were validly made does not predispose the outcome of such review to a decision favourable to the applicant.
As to the applicant’s assertions regarding fairness, I accept the Minister’s submission that there is nothing before the Court to suggest that the applicant was denied a hearing as contemplated by s 425 of the Act. The material before the Court establishes that:
·when the Tribunal acknowledged the application for review, it invited the applicant to provide any additional information concerning his application;
·the hearing invitation informed the applicant that the Tribunal could not decide the review favourably to him on the information it had available to it and invited him to attend a hearing to give evidence and present arguments; and
·at the hearing, the Tribunal had extensive discussions with the applicant regarding his claims, and the applicant was made aware of the dispositive issues on the review and given opportunities to respond.
Further, the Tribunal put information to the applicant in the s 424A Letter, namely the information obtained from the applicant’s partner at hearing and the late provision of the Police Report and invited him to comment on that information.
It follows that neither ground 3 nor ground 4 disclose any jurisdictional error on the Tribunal’s behalf.
Grounds 5 and 6
Grounds 5 and 6 contain assertions that the applicant was not afforded procedural fairness and as such it is convenient to address the grounds together.
The applicant submits that he was not given an opportunity to provide evidence and present arguments in support of his claims, in particular in relation to how he met the definitions of ‘refugee’ and ‘well-founded fear of persecution’ in ss 5H(1) and (2) of the Act.
This submission must be rejected.
On 27 October 2017, the Tribunal emailed the applicant acknowledging receipt of the applicant’s application for review and invited the applicant to provide “material or written arguments”. The applicant did not provide any material or written arguments prior to the Tribunal hearing. The Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard. The applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicant attended the hearing on 27 September 2017 and gave evidence with the assistance of an interpreter in the Malay and English languages. Moreover, the Tribunal also put information to the applicant in the s 424A Letter and invited him to comment on that information. The applicant provided a response to the s 424A Letter and that response was taken into consideration by the Tribunal.
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
Grounds 5 and 6 therefore disclose no jurisdictional error on the Tribunal’s behalf.
Ground 7
Ground 7 merely seeks the Court undertake judicial review and does not assert any jurisdictional error by the Tribunal.
Ground 7 therefore discloses no jurisdictional error on the Tribunal’s behalf.
Other grounds raised in oral submissions
I first address the applicant’s submissions regarding the Police Report.
At paragraph [20] of its decision, the Tribunal records that the applicant’s evidence at hearing was that the applicant:
(1)had reported the threats to the police but had lost a copy of the Police Report;
(2)had lost the Police Report in March after arriving in Australia;
(3)then said he had lost the Police Report in Malaysia;
(4)that he had not included the Police Report in his written claims because it was lost; and
(5)was convinced the Police Report was in his home in Malaysia and he would call his family to look for it.
The Tribunal noted that the applicant’s “evidence on this seemed to be changing and this, coupled with the fact that he had not mentioned the police report in his written claims caused [the Tribunal] to have concerns over whether there was a police report at all”. The Tribunal also noted that it had concerns that the applicant had not provided the Police Report yet and noted that “he had been refused by the Department and asked why he had not asked his family to look for it”.
At paragraph [21] of its decision the Tribunal said:
I noted that even if he had felt he could not write down the police report as he had lost it, he also did not seem to have written down that he had been threatened by his partner’s brother nor that he had gone to the police. He said again that he did not write it down as he did not have the evidence. He clarified that he meant he did not have the report and in relation to the threats he had lost his phone that the threats were on.
At paragraph [26] of its decision the Tribunal says:
After the hearing, the applicant’s provided a police report dated [in] March 2016, in which he claimed that:
•[in] March 2016 he had been threatened by someone he knew as [Mr B] by SMS;
•that [Mr B] would kill him if he did not marry [Mr B’s] younger sister;
•that he had earlier received a threat from [Mr B’s] that he would beat him up if the applicant did not marry his younger sister;
•but that [Mr B’s] sister does not want to marry the applicant as she is [number of] years his senior;
•He claimed he is afraid for his safety.
On 2 May 2018 the Tribunal sent the applicant the s 424A Letter. In the s 424A Letter, the Tribunal set out the evidence given by the applicant’s partner at her hearing in relation to the Police Report, the evidence given by the applicant at his hearing in relation to the Police Report and the contents of the Police Report provided by the applicant after the hearing. The s 424A Letter also provided as follows:
This information is relevant to the review because the Tribunal has some significant doubts that the police report is genuine and that the incidents described have occurred. This is because neither of you stated in your written statements that Ms Zakaria’s brother had made death threats to Mr Kamil or Ms Zakaria, nor did you say in those statements that you had gone to the police and made a report. Further, the Tribunal has concerns that the police report was provided late in the process, after the Department refused your applications, after you applied to the Tribunal, and after the hearing.
The information is the provision after the hearing of what is claimed to be a Malaysian police report made by Mr Kamil on 14 March 2016, that contains claims that Ms Zakaria’s brother had threatened him with death and prior to that with being beaten.
The information is relevant because it may appear different to what was claimed in your written statements as discussed above, and may also appear, from its late provision, to indicate that the police report is not genuine. If the Tribunal relies on the inconsistencies between the information, your written claims, and the concerns with the late provision of the police report, the Tribunal may find that Ms Zakaria’s brother has not made threats against either of you, and that the police report is not genuine.
This may further lead the Tribunal to find that you are not credible or witnesses of truth.
The consequence of this being relied on is that, subject to any comment or response you make, this information would be the reason, or a part of the reason for affirming the decision that is under review and lead to the Tribunal affirming the review.
You are invited to give comments on or respond to the above information in writing.
The applicant responded to the s 424A Letter on 14 March 2018. That response is essentially the same as the explanations he gave at the hearing before the Tribunal.
At paragraph [34] – [36] of its decision the Tribunal said:
The applicant’s response is essentially in the same form as the explanations he gave at hearing. I have carefully considered the response, and what he said at hearing, but I find that it does not address the concerns I have with the claims of the applicant. I do not accept that he felt unable to put down details of the threats or the complaint to the police because he had lost his phone and copy of the police report. It does not follow that him not having evidence meant he could not have made a claim about this, and it did not constrain him from making the other claims in his written application without supporting evidence – I find this explanation implausible.
The applicant has not satisfactorily addressed why he was not able to provide the police report until after the hearing. He claimed it had been lost, and lost prior to his arrival in Australia in March 2016. Despite having lodged his application for protection, this having been refused, lodging his application for review and attending a hearing, he said he had not had any luck getting his family to find it until after the hearing. Again, I find this implausible given the points at which he had been made aware that his claims were disbelieved, I consider that he had ample opportunity to have his family find the document earlier in the process and I find that the provision of the police report so late in the process raises serious concerns in my mind about whether this is a genuine document.
This is particularly the case because I find the claims contained in the document to be implausible given he did not mention these claims in his written statement to the Department, and I have not accepted his explanation for why this was, above.
As set out above, at paragraph [37] of its decision the Tribunal concluded that “these concerns therefore lead me to the following conclusions. I find I place no weight on the police report, given my concerns above. Further, given his unsatisfactory explanation of why these claims were not made in his written statement, I find that I do not accept these events have occurred…”.
Accordingly, in light of the above, I discern no error in the approach or reasoning of the Tribunal in relation to the Police Report. The Tribunal considered the evidence before it and set out the reasons for its conclusion. The Tribunal’s conclusion as to the Police Report is not illogical or irrational or unreasonable. I do not consider it could be said the Tribunal’s decision is so lacking a rational or logical foundation that the decision was one that no rational or logical decision-maker could reach: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [34]. It discloses an evident and intelligible justification and is within the range of possible lawful outcomes: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105].
As to the submissions that the applicant did not know why the Tribunal did not accept the Police Report as truthful and that he was not provided with an opportunity to explain to the Tribunal the delay in submitting the Police Report, those submissions must be rejected. Firstly, the reasons for the Tribunal placing no weight on the Police Report are set out in paragraphs [34]-[36] of the Tribunal’s decision and as extracted above at [37]. Secondly, as already set out, on 2 May 2018 the Tribunal sent the s 424A Letter to the applicant clearly putting him on notice of its concerns regarding the Police Report, including its late submission, and on 15 May 2018 the applicant provided his response to those concerns. He therefore not only had an opportunity to explain the delay in submitting the Police Report, but did so.
As to the remaining grounds raised by the applicant in oral submissions, firstly, those grounds do not assert any error by the Tribunal. They appear to do no more than express dissatisfaction with the Tribunal’s decision and seek impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ. Secondly, I note that at:
(a)paragraph [15] of its decision, the Tribunal addresses matters of credibility and asserted fear of persecution;
(b)paragraph [16] the Tribunal states that it is aware of the need and importance of being aware of the difficulties asylum seekers face and that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims;
(c)paragraph [37], [38] and [44] for the reasons set out earlier, the Tribunal did not accept that the applicant had been threatened or that the applicant and his partner had been forced to marry or that there is real chance that the applicant will be harmed for any reason if he were to return to Malaysia; and
(d)for the same reasons, at paragraph [49], the Tribunal found that there was no real risk that the applicant will suffer significant harm if he were to return to Malaysia.
It follows that the further grounds advanced by the applicant at hearing also disclose no jurisdictional error on behalf of the Tribunal.
DISPOSITION
For the above reasons, the Amended Application must be dismissed.
The first respondent seeks an order that the applicant pay their costs in the amount of $6,000. I note that this is below the scale amount. I shall so order.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 20 December 2023
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