CZL18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1301
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301
File number: MLG 1613 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 29 November 2024 Catchwords:
MIGRATION – application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicant afforded procedural fairness and no obligation to provide further hearing before Tribunal – Tribunal’s mistaken conclusion was not a material error – consideration of an invalid visa application was not information within the meaning of s 424A of the Migration Act 1958 (Cth) as it was not the matter that undermined or rejected the Applicant’s claim – application dismissed with costs
Legislation: Migration Act 1958 (Cth) ss 424A, 42 Cases cited: AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Sharma v Minister for Immigration & Anor [2018] FCCA 2152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submissions: 25 September 2024 Date of hearing: 25 September 2024 Place: Melbourne Solicitor for the Applicant: Appearing in person Counsel for the Respondents: Mr O’Shannessy Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1613 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CZL18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application filed 8 June 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
3.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
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 BINGHAM:
On 8 May 2018 the then Administrative Appeals Tribunal (Tribunal) affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (subclass 866) visa (Visa) (Tribunal’s Decision). The Applicant sought a protection visa based on a fear of harm if he returned to Malaysia as a result of his participation in a political protest in 2015.
By an application filed on 8 June 2018 (Application), the Applicant seeks judicial review of the Tribunal’s Decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Act). I must determine whether the Tribunal afforded the Applicant natural justice and procedural fairness and applied the law correctly.
BACKGROUND
The Applicant is a Malaysian citizen who arrived in Australia on 10 April 2016 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visitor visa.
The Applicant applied for a protection visa on 8 July 2016. The Delegate refused this visa application on 2 September 2016 on the grounds of invalidity pursuant to s 46(2A) of the Act (Invalid Visa Application).
On 16 September 2016 the Applicant applied for the Visa. The second visa application is the subject of these proceedings (Valid Visa Application).
The basis for the Applicant’s protection claims can be summarised as follows:
(a)The Applicant attended a private university in Selangor between 2007 and 2009. He acquired a student loan from the Perbadanan Tabung Pendidikan Tinggi Nasional (PTPTN) an agency within Malaysia's Ministry of Education that provides educational financing for students.
(b)The Applicant had been involved, in that he was wearing a yellow shirt (the emblem of Bersih) on his way to work, in an anti-government Bersih rally in Kuala Lumpur on 30 August 2015.
(c)After attending the rally he said the PTPTN targeted him because of his anti-government opinion including by demanding that he discharge fifty percent of his outstanding student loan before blocking his passport.
(d)The government in power at the time decided to put all participants in Bersih in prison.
(e)If he returned to Malaysia:
(i)he may be imprisoned.
(ii)he would have difficulty obtaining employment;
(iii)the bank will block him or his bank accounts would be frozen;
(iv)his passport would be black-listed if he tried to depart the country; and
(v)he feared bankruptcy.
Relevant statutory requirements of the Visa
Sections 36(2)(a) and (aa) of the Act set out the criteria for the granting of a protection visa:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non‑citizen mentioned in paragraph (a) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
The meaning of ‘refugee’ is defined in s 5H of the Act:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
The meaning of well-founded fear of persecution is found in s 5J of the Act:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(2)A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Delegate’s Decision
On 5 January 2017, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).
The Delegate concluded that the Applicant did not satisfy the criteria set out in s 36(2)(a) or (aa). The Delegate noted that there was a lack of supporting evidence and detail regarding the Applicant’s protection claims.
The Delegate was not satisfied that there was a real risk the Applicant would suffer significant harm if returned to Malaysia after considering the claims of imprisonment and the potential “blocking” or “blacklisting” of his passport.
The Delegate considered the relevant country information and was not satisfied that the Applicant had a well-founded fear of persecution nor was the Delegate satisfied that there would be a real chance of persecution for one or more of the reasons set out in s 5J(1)(a) and that the Applicant was a refugee pursuant to the definition contained in s 5H of the Act.
Application for review by the Tribunal
The Applicant sought review of the Delegate’s Decision by the Tribunal on 5 January 2017. The Tribunal advised the Applicant in correspondence dated 9 January 2017 that any material or written arguments that the Applicant wished to submit for the Tribunal’s consideration should be provided as soon as possible.
By way of correspondence from the Tribunal dated 11 August 2017, the Applicant was invited to appear before the Tribunal on 15 September 2017 to give evidence and present arguments relating to the issues in his case. The Tribunal requested that the Applicant complete a “Response to hearing invitation - MR Division form” (Response Form) and attach additional or new information which he wished to have considered by the Tribunal.
The Applicant completed the Response Form and returned it to the Tribunal in an email dated 17 August 2017. From the material before me it appears that no additional information was provided by the Applicant.
The Applicant appeared in person before the Tribunal with the assistance of a Malay interpreter and gave evidence at the 15 September 2017 hearing before the Tribunal (Tribunal Hearing). The following documents were handed up by the Applicant at the hearing:
(a)A scanned copy of his Malaysian passport;
(b)A bursary statement dated 3 June 2015;
(c)A letter from the PTPTN with an accompanying uncertified translation indicating that:
(i)the Applicant was 13,688.10 ringgits in arrears on his student loan;
(ii)the failure to pay has caused a blacklist by Immigration Department on 26 April 2017; and
(iii)the failure to repay the loan affected his CCRIS (credit) record.
At the Tribunal Hearing the Applicant submitted that:
(a)His student loan from the PTPTN related to a broadcasting degree was 16,000 ringgits, (approximately $5,500 Australian dollar at the relevant time).
(b)He fell into arrears on the repayments on the student loan after his Mother became ill.
(c)He was involved in an anti-government Bersih rally in Kuala Lumpur on 30 August 2015 when he happened to go to work while wearing a yellow shirt.
(d)He would have difficulties gaining employment in Malaysia, the bank would block him and his passport would be blacklisted if he attempted to depart Malaysia.
After the conclusion of the Tribunal Hearing, the Applicant emailed to the Tribunal’s national registry mailbox at 5:50pm on 15 September 2017 several links to material pertaining to criticisms of the ‘Higher Education National Fund’ in Malaysia.
THE TRIBUNAL’S DECISION
The Tribunal characterised the Applicant’s claims as one relating to political activity and the other as relating to outstanding student loans.
With respect to the outstanding student loan claims raised during the course of the Tribunal Hearing, the Tribunal found that the Applicant was in a modest amount of debt of about $4,400.00 Australian dollars being owed to the PTPTN with respect to a diploma of broadcasting. The Tribunal noted that there was an inconsistency between oral and documentary evidence regarding the amount owed and preferred the most current bursary statement that had been provided by the Applicant. The Tribunal did not accept that the Applicant would return to Malaysia with any other debt other than the student loan. The Tribunal found that the Applicant held a genuine fear of returning to Malaysia arising from the debt, a poor credit history, bankruptcy, a real chance that he will be required to meet the repayments and that he departed Malaysia to avoid his responsibilities in making repayments. It was the Applicant’s evidence that he had made repayments on the loan in the past and continues to have the capacity to make repayments. Based on the evidence available to it, the Tribunal did not accept that the Applicant will return as a bankrupt nor did he have a real chance or risk of being declared a bankrupt or having his passport blocked as a bankrupt based on the manageable amount of debt. The Tribunal found that any financial difficulties faced by the Applicant did not amount to the Applicant facing a real chance of serious harm that would satisfy ss 5J(1), (4), or (5) of the Act. The Tribunal did not consider the Applicant would face a real risk of significant harm arising from his economic circumstance. The Tribunal concluded that based on the Applicant’s circumstances as a whole, the Applicant did not satisfy s 36(2)(aa) of the Act.
The political activity claim was made in the valid visa application and related to the Applicant’s purported involvement in an anti-government Bersih rally. During the Tribunal Hearing the Tribunal questioned the Applicant about his knowledge of the Bersih movement which on the surface appeared to be at a high level, yet he could not identify the leaders of the movement nor could he provide any documentary or social media evidence of his political activity or anti-government opinion. He claimed he was “not into politics at all”. The Tribunal found that the Applicant’s political opinion claim was made to embellish his claim to augment his otherwise credible claims about a student loan.
The Tribunal was not satisfied that the Applicant’s fear of persecution was well-founded for any of the reasons mentioned in s 5J(1)(a) if he is returned to Malaysia. The Tribunal was not convinced that the Applicant faces a real risk of harm nor was the Tribunal satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 8 June 2018, within the time limit prescribed by s 477 of the Act.
This matter was heard on 25 September 2024 and proceeded in person (Hearing). The Applicant appeared in person and Counsel, Mr O’Shannessy appeared for the Respondents. The Applicant was offered an interpreter for the purposes of the Hearing. This offer was rejected by the Applicant. From my observations it was apparent that the Applicant had a proficient command of English, understood and participated in the Hearing.
The Applicant did not file an amended application or written submissions as provided for by Orders made on 4 September 2024. At the Hearing the Court had the following material before it from the Applicant:
(a)The Application; and
(b)The Affidavit of the Applicant, annexing the Tribunal’s Decision, filed 8 June 2018.
The Minister relied upon:
(a)The Response filed 2 August 2018;
(b)The Minister’s Outline of Submissions filed on 11 September 2024; and
(c)The List of Authorities filed 23 September 2024.
The Minister filed and served on the Applicant a Court Book on 25 September 2019.
The Application was technically deficient in that the Applicant did not seek a writ of mandamus, prohibition or injunction against an officer of the Commonwealth. It is open to the Court to amend the Application at the Hearing, with the Applicant’s consent: see AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20] and Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13]. At the Hearing I raised the technical deficiency with the parties. Neither party objected to the Application being amended. In these circumstances I ordered that the Application was to be amended to reflect that the Applicant was seeking a writ of mandamus in addition to the other relief sought.[1]
[1] Transcript P2:L25; Order 1 of the Orders of Judge Bingham made on 25 September 2024.
The Application contained three grounds of review (Grounds of Review):
I feel that natural justice was not given to me the tribunal did not give me a second chance to clarify the confusion they had regarding variation of some of the information. (Ground 1)
I was hoping to be invited for another hearing as I believe it was unfair of them to expect me to be able to exactly recount all of my past at one hearing under so much pressure. I was not provided procedural fairness as I was not afforded a chance to clarify myself through a second hearing or in writing. (Ground 2)
I also feel that the law was incorrectly applied as the AAT took into consideration an application lodged by me which was previously deemed invalid. As such, that application should not be taken into consideration while deciding on my file. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment. (Ground 3)
Bold and italicised. Otherwise as written.
I have extracted the relevant part of the Applicant’s affidavit below:
1.I am a Malaysian Citizen and I came to Australia on 10 April 2016 on a 601 (Electronic Transfer Authority) visitor visa. I had applied for a Subclass 866 protection visa on 8 August 2016 which was deemed invalid on 2 September 2016. I then validly applied for another protection visa on 19 September 2016.
2.Unfortunately, it was refused by Immigration on 5 January 2017. (File Number. CLF2016/41534).
3.Thus, I was not satisfied with the reasoning behind the refusal and felt that my visa should not have been refused. As such, I applied for a review of my case at the AAT for review on the 5th of January 2017 (Case No. 1700233). I had been waiting for my hearing for a long time since then. I attended my hearing and tried to clear out all the confusion and answered all questions.
4.Unfortunately, I received a letter recently stating that my appeal was not successful at the AAT. The letter was dated 8th May 2018. The letter stated that my application for review was refused due to the case officer deciding that I had insufficient details regarding the claims that I made. I had waited for a long time for the hearing. They neither asked me for a second hearing nor demanded any documents but decided straight away. Thus, I believe, it was unfair of them to expect to be able to exactly recount all my past at one hearing under so much pressure.
5.As such, I feel that the AAT had made an error in their judgment and refused my application for review. I have now lost faith in their procedures and thus, I would like to challenge the decision of the AAT as I feel it was not lawful and fair. As such, I have decided to appeal the decision at the Federal Circuit Court in the hope of getting a fair and lawful outcome so that I can get my visa as planned.
The Applicant submitted that he did not know what his grounds of review were as he had been assisted by a migration lawyer in making the Application. I do not accept that the Applicant was unaware of his stated grounds of review because:
(a)The Application was filed on 8 June 2018. There was no lawyer on the record. The Applicant was on the record as a litigant in person.
(b)The Applicant appeared as a litigant in person when the matter came before the Court on 4 September 2019 and 28 March 2024.
(c)The Applicant was given notice of this listing on 30 July 2024, 26 August 2024 and 16 September 2024.
(d)The Applicant filed an updated Notice of Address for Service on 4 May 2021 and 15 September 2024.
The Applicant made the following oral submissions at the Hearing:
(a)The Applicant needed a second hearing before the Tribunal because the period of time between Delegate's Decision and Tribunal's Decision was too short, and he was living nomadically at the time which prevented him from providing all of the evidence he could.
(b)He received a letter from the Department saying his invalid visa application would be removed from the file, and the two applications were mixed up.
(c)If he were to have given more evidence to the Tribunal, it would be easier for the government to 'capture him'.
(d)The Tribunal was biased against him because they considered his previous visa application being refused.
CONSIDERATION
Ground 1
The Applicant asserted that he was not afforded natural justice because the Tribunal did not give him a further opportunity to clarify confusion it had regarding “the variation of some information”.
Section 424A of the Act required the Tribunal to invite the Applicant to comment on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision of the Delegate. The Minister submitted that the “existence of doubts, inconsistencies or the absence of evidence”[2] are not captured within the meaning of information in s 424A. Accordingly, the Tribunal was not required to put the Applicant on notice that there were inconsistencies in his evidence and as such there was no jurisdictional error.
[2] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18].
When asked what was the mistake or error of the Tribunal that underpinned this ground of review, the Applicant stated that “when they asked me to procure some evidence of my involvement, because I thought that was irrelevant for myself to do so to somehow boast about what I am doing against the government. And then it will make it easier and convenient for the government to catch me”. It is clear that the Applicant had been given the opportunity to put evidence before the Tribunal and determined not to do so. I accept the submissions of the Minister that there is no identifiable jurisdictional error with respect to Ground 1.
Ground 2
With respect to Ground 2 the Applicant complained that he was not provided procedural fairness because he expected to be invited for another hearing or to be given the ability to further address the Tribunal in writing on the basis that it was unfair to expect him to recount his past under so much pressure.
The Minister submitted that the Tribunal’s hearing invitation on 11 August 2017 satisfied s 425 of the Act which required the Tribunal to invite the Applicant to appear at the hearing and give evidence. The Applicant appeared at the Tribunal Hearing and submitted documents to the Tribunal for its consideration. The Applicant was given the opportunity after the Tribunal Hearing to submit further evidence for the Tribunal’s consideration. The Applicant took advantage of the opportunity afforded to him and submitted further documentation in support of his application after the conclusion of the Tribunal Hearing.
Having complied with s 425 of the Act, the Minister submitted that there was no obligation to the invite the Applicant to a second hearing and that no jurisdictional error arises under this ground of review.
At the Hearing before me, the Applicant said he was living “nomadically”, that he had no fixed address and that by the time he received the notice of the Tribunal Hearing he did not have time to prepare but that he managed to present evidence in any event. He said he did not ask for a second hearing or a change of the hearing date as back then he did not have the capacity to do so.
I accept the submission of the Minister that no jurisdictional error arises on Ground 2, there was no requirement that the Applicant be offered a second hearing and there is no material to indicate that the Tribunal should have considered holding another hearing to discharge its obligations. The Applicant conceded an additional hearing was not requested. There is nothing before me that would indicate that the Applicant sought to make further submissions in writing to the Tribunal. In fact, the Applicant submitted documents to the Tribunal that were accepted into evidence, he was accorded the opportunity to attend at the scheduled hearing to give evidence and did so and he was given the opportunity to provide additional evidence after the conclusion of the Tribunal Hearing and did so.
Ground 3
The Applicant complained in Ground 3 that the Tribunal wrongly took into account his invalid visa application.
When asked by me what mistake was made by the Tribunal on this ground the Applicant said that he had received a letter from the Department of Home Affairs in which he was advised that the Department would not retain a copy of the Invalid Visa Application. The Applicant submitted that the Secretary of the Department breached s 352 of the Act by giving the Tribunal documents that were not relevant to the decision under review, with the consequence being that the Tribunal was biased against him. I asked the Applicant whether he had a copy of the document that he was referring to. The Applicant produced two documents which were provided to Counsel for the Minister. Counsel advised me that only one of the documents handed to him was in the Court Book. I was taken to page 47 of the Court Book by Counsel. This letter does not make the assertion as alleged by the Applicant.
The Invalid Visa Application contained claims that related to unsettled debts including a debt to the PTPTN, and credit card debts. The Valid Visa Application referred to a single reason why the Applicant left Malaysia namely because of his political activity. The Applicant raised the issue of the outstanding student loan during the course of the Tribunal Hearing. The Tribunal was required to consider the issues associated with the student loan and did so by taking into account the document provided by the Applicant including the bursary documentation.
In his oral submissions, Counsel for the Minister identified six separate but interrelated reasons in paragraph [41] of the Tribunal’s Decision as to why the Tribunal reached the conclusion it did:
(a)The Applicant demonstrated a high level of knowledge about Bersih but was unable to elaborate basic information such as the leaders of the anti-governmental reform movement. He explained this lack of knowledge by stating that he was, in fact, not political.
(b)The Applicant was unable to provide any documentary or social media evidence about political activity or anti-government opinion;
(c)There was a lack of evidence or ambivalent evidence that the Applicant happened to be being at work wearing yellow. This strongly indicated that the Applicant did not, in fact, attend the rally as claimed and that he hadn’t been involved in any political activities, anti-government or otherwise, in the past at all.[3]
(d)The Applicant’s testimony was, in fact, so weak it indicated he had never been imputed for having any anti-government opinion in the past.[4]
(e)The Tribunal, on examination of the available country information provided by the Applicant, was unable to find any statements that pro-Bersih students would be targeted based on their political opinion.[5]
(f)It could not be overlooked that the Applicant did not mention the political activity claim when he initially, albeit invalidly, applied for a protection visa in July 2017.[6]
[3] Transcript P16:L20.
[4] Transcript P16:L25.
[5] Transcript P16:L35.
[6] Transcript P16:L40.
Counsel for the Minister conceded that the reasoning in sixth ground, referred to in paragraph (f) above was incorrect. The Invalid Visa Application did in fact refer to the fact that one of the reasons that the Applicant left Malaysia was that he had “participated in a Bersih movement Purpose of this movement was to reclaim the general election must be clean and fair. This movement somehow have been asked to disbanded and get those participants imprison”.[7]
[7] CB, 34.
When asked as to what I should make of the error of reasoning with respect to the sixth ground Counsel conceded that the written submissions did not address this point. Counsel submitted that the error was not material and that the appropriate test was as set by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[8] namely that the error could not have affected the outcome of the Tribunals determination. It was submitted that the sixth reason being erroneous does not sufficiently de-stabilise the five other reasons the Tribunal gave for rejecting the claim based on political opinion. It was submitted that the five other reasons given for rejecting the claim were sound.
[8][2024] HCA 12, [13]-[16].
It is clear that there was an error as the Tribunal arrived at a mistaken conclusion by making a finding that the Applicant did not mention the political activity claim in his Invalid Visa Application. The question that arises is whether the error was a material one in the sense that there is a realistic possibility, that is a possibility that was real or not fanciful or improbable, that the decision made in fact could have been different if the error had not occurred. If the sixth reason was excised the five well founded reasons given by the Tribunal remain. The decision made by the Tribunal could not have been different if no error had been made.
The Applicant raised in his oral submissions that the Tribunal was biased because it took the Invalid Visa Application into account.
The Minister submitted that the Tribunal was plainly aware that the first visa application was invalid and that there was no indication that the Tribunal held the fact that the Invalid Visa Application was made against the Applicant.
The Minister in written submissions referred to the findings of the Tribunal at paragraph [41] of the Tribunal’s Decision that the Tribunal regarding the Applicant’s lack of knowledge of the Bersih movement and its politics and the lack of evidence regarding the Applicant’s political activity or anti-government opinion. The Minister goes on to submit that it was only after this analysis that the Tribunal considered that the Applicant had not mentioned the political activity claim in the Invalid Visa Application and consequently made findings with respect to the Applicant’s credibility “ultimately concluding that the applicant contrived the set of claims in his valid application”. The Minister ultimately submitted that the Tribunal rejected the Applicant’s claim on the “basis of lack of evidence before it well before making findings on the Applicant’s credibility”.
In dealing with the issue as to whether the Tribunal was required to put The Invalid Visa Application to the Applicant, Counsel for the Minister submitted that the Invalid Visa Application did not of itself undermine the Applicant’s claims and to the extent it was a credibility point it would not constitute information of s 424A of the Act.[9]
[9] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.
I find that the Invalid Visa Application did not contain on its terms a rejection, denial or undermining of the Applicant’s claims. Further, I find that consideration of the Invalid Visa Application was not information within the meaning of s 424A of the Act as it was not the matter that undermined or rejected the Applicant’s claim. The Applicant’s claim was rejected on the primary basis of a lack of evidence before making the findings on credibility.
I find that there is no identifiable jurisdictional error with respect to Ground 3.
CONCLUSION
No jurisdictional error has been identified in the Tribunal’s Decision. The Application must be dismissed.
The Minister sought costs fixed in the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $8,371.30.
Orders will be made accordingly.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 29 November 2024
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