DCT20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 254
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DCT20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 254
File number(s): MLG 2352 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 3 March 2025 Catchwords: MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to consider relevant country information assessment – Identified error - Whether a material jurisdictional error – Review allowed – Writs issued. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 499, 499(2A) Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
AVQ15 v Minister for Border Protection (2018) 266 FCR 83; [2018] FCAFC 133
AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 912
BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291
BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
DJF18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1327
DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 43
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 153; [2024] HCA 12
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALR 464; [2022] HCA 15
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 10 February 2025 Date of hearing: 10 February 2025 Place: Melbourne Solicitor for the Applicant Mr L Bayly of Lawson Bayly Advocate for the Respondents Mr C McDermott Solicitor for the Respondents Mills Oakley ORDERS
MLG 2352 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DCT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.A writ of certiorari be issued to quash the decision of the Administrative Appeals Tribunal made 6 March 2019.
4.A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review filed 12 July 2019 according to law.
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 CORBETT
By an application for judicial review filed 6 July 2020, the applicant seeks judicial review of a decision of the first respondent (Tribunal) made 16 June 2020 to affirm the decision of a delegate of the Minister made 8 July 2019 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
The sole ground of review is that the Tribunal failed to comply with Ministerial Direction No. 84 made under s 499 of the Migration Act 1958 (Cth) (Act) by failing to take into account, where relevant, a country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 10 February 2025 and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 2 November 2018 on an Electronic Travel Authority Tourist visa.
On 8 January 2019, the applicant applied for the visa. The applicant stated that he required protection so that he did not have to go back to Malaysia (CB 18). In the Form 866C made in support of the application for the visa, the applicant identified the following claims for protection (CB 18-9):
I am leaving my country because I accept the threat of being slandered for failing to pay debt from the Money lender.
Question 44 on the Form 866C asked “Have you experienced harm in that country”, to which the applicant answered (verbatim) (CB 19):
They hit me when I tried to pay some money to pay off my debt, they hit me until I was stay in hospital.
Question 45 asked “What do you fear may happen to you if you go back to that country?”, to which the applicant answered (CB 19):
The same thing would be repeated if I returned to my country they would still find me wherever I was and would hurt me if they meet me.
Question 46 asked “Who do you think may harm/mistreat you if you go back?”, to which the applicant answered (verbatim) (CB 20):
The moneylenders who lend money to me will definitely threaten me to hit me and maybe kill me if I can’t pay them. If I go back to my country it will happen.”
Question 47 asked “Why do you think it this will happen to you if you go back?”, to which the applicant responded (verbatim) (CB 20):
I think this will happen if I go back because, I had a lodge report to the authorities but they still not take action. It’s more scary if I go back to my country.
Question 48 asked “Do you think the authorities of that country can and will protect you if you go back?”, to which the applicant answered (verbatim) (CB 21):
Before this I make a police report when they came and hit me, the second one I make a report when they come to my family house and threatened me and my family. At the end nothing happened from the authorities they still not take action.
On 8 July 2019, a delegate of the Minister refused the application for the visa (CB 59-68). The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations because the applicant was not a refugee (s 36(2)(a) of the Act) and there was not a real risk that the applicant will suffer substantial harm as a foreseeable consequence of removal from Australia to a receiving country (Malaysia) (s 36(2)(aa) of the Act).
On 12 July 2019, the applicant applied to the Tribunal to review the delegate’s decision (CB 73–4).
On 30 April 2020, the applicant was invited to attend a hearing of the Tribunal to be held on 27 May 2020 (CB 100-1).
On 27 May 2020, the applicant attended a hearing before the Tribunal but the hearing was adjourned to a date to be fixed due to difficulties securing a Malay interpreter (CB 120).
On 10 June 2020, the adjourned hearing resumed by telephone before the Tribunal. The applicant appeared in person and gave evidence assisted by a Malay interpreter (CB 140).
On 16 June 2020, the Tribunal delivered its decision on the review and affirmed the delegate’s decision not to grant the applicant a protection visa (CB 148-58) (Decision).
TRIBUNAL DECISION
In the Decision, the Tribunal referred to “Mandatory Considerations” (CB 149 [8]):
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal did not identify the “country information assessments” prepared by DFAT that were “taken into account”.
The Tribunal then summarised the issue under review as follows (CB 150 [9]):
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds because he fears harm from unlicenced moneylenders in Malaysia.
The Tribunal recited the claims for protection in the application for the visa (CB 150 [13]–[16]), and then summarised the evidence given at the hearing by the applicant (CB 151 [21]–[35]).
The Tribunal then referred to country information prepared by DFAT dated 19 April 2018 (CB 152 [36]). It did so to establish as a relevant fact that the Royal Malaysian Police (RMP) is a professional and effective police force that could offer the applicant some level of protection from harm. In footnote 2 to the Decision, the Tribunal identified the relevant section of the “country information” (s 5.5) upon which it relied to support that conclusion. At the time of the Decision and the hearing before the Tribunal, the 18 April 2018 assessment was not the most recent “country information” available to the Tribunal. A subsequent report dated 13 December 2019 was available that contained more recent and more detailed information regarding the activities of unlicensed moneylenders (Ah Long) in Malaysia (CB 226–88) (see in particular s 3.108-3.117 at CB 264-5). The 2019 assessment also provided more recent, albeit similar, information regarding the RMP and the effective protections available to borrowers from unlicensed money lenders (CB 280).
The Tribunal then expressed concerns regarding the credibility of the applicant’s evidence (CB 153-4 [39]–[46]). After expressing those concerns, the Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act (CB 154 [47]). The Tribunal found that the applicant’s claims were not credible and were “manufactured” (CB 154 [44]). The Tribunal did not accept the applicant had borrowed money in Malaysia from illegal or unlicensed moneylenders (CB 154 [47]).
The Tribunal also concluded that there was no real risk that the applicant will suffer significant harm from any person for reasons of unpaid loans as a necessary and foreseeable consequence of him being removed from Australia to Malaysia. The Tribunal was not 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) of the Act (CB 154 [49]–[50]). The Tribunal affirmed the decision not to grant the applicant a Protection visa (CB 155 [52]).
PROCEEDINGS IN THIS COURT
The application for judicial review was filed on 6 July 2020 (CB 160–5). The application was supported by an affidavit from the solicitor for the applicant affirmed on 6 July 2020 (CB 167–288). That affidavit annexed copies of a Country Information Report Malaysia dated 19 April 2018, and a Country Information Report Malaysia dated 13 December 2019 prepared by DFAT. The grounds of review were as follows:
The Administrative Appeals Tribunal (the Tribunal) made the following jurisdictional errors, by reason of which it is claimed that the migration decision under review is not a privative clause decision within the meaning given by subsection 47(2) of the Migration Act 1958 (Cth) (the Act).
(1)The Tribunal erred in law by failing to comply with Ministerial Direction No. 84 (Direction 84) made under s 499 of the Act by failing to have regard to the most up-to-date country information.
Particulars
a. Direction 84 required that:
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision-maker, the decision-maker must take into account the assessment, where relevant, in making their decision.
b. The Tribunal purported to have regard to Country Information Report Malaysia (the old report) published by the Department of Foreign Affairs and Trade on 19 April 2018: Tribunal’s reasons, para [36] (footnote 2).
c. The Tribunal failed to have regard to Country Information Report – Malaysia (the up -to -date report) published by the Department of Foreign Affairs and Trade on 13 December 2019, approximately six months prior to the Tribunal’s decision.
d. The differences between the two versions of the report were material, because the up-to-date report contained information under the heading “Victims of Loan Sharks” (at paras 3.108 -3.117) that was more detailed and broadly supportive of the applicant’s claims when compared to a shorter section that appeared under the same heading in the old report (at paras 3.97 – 3.101).
The application for judicial review was listed for hearing at Melbourne on 10 February 2025. Mr Bayly, solicitor, appeared for the applicant. Mr McDermott of Counsel appeared for the Minister.
Both parties prepared and exchanged outlines of written submissions. A copy of Ministerial Direction No. 84 dated 25 June 2019 was tendered on behalf of the Minister. Relevantly, that Direction provided:
In performing functions or exercising powers under section 65, 414 or 415 at of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Home affairs to the extent that they are relevant to the decision under consideration.
Refugee Law Guidelines
Complimentary Protection Guidelines
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and the assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
APPLICANT’S SUBMISSIONS
On behalf of the applicant, Mr Bayly submitted that the country information prepared by DFAT may be relevant to determining the credibility of the applicant’s claims and that the Tribunal cannot disregard that information merely because it disbelieves the factual basis for the applicant’s claims (see Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALR 464; [2022] HCA 15 at [50] and [59] per Gordon J (Plaintiff S183/2021)). Country information may corroborate or give context to the applicant’s claims, even when they may lack credibility or appear unreliable (see Plaintiff S183/2021 at [59]). Mr Bayly also relied upon general observations about findings as to the credibility of refugee claims and the need for care, fairness and a reasonable approach when considering the evidence of applicants for protection (see AVQ15 v Minister for Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 at [22]–[24] per Kenny, Griffiths and Mortimer JJ (AVQ15); Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 at [61] per Sackville J (Rajalingam) and SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]–[45] per Lee J (SZTFQ)).
A failure to consider up to date country information may constitute jurisdictional error and simply alluding to country information in the Tribunal’s reasons is not sufficient to negate error when considering claims for protection (see BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157 at [50] per Annastasiou J (BHY19) and BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 [35]–[37] per O’Callaghan J (BMP15)).
Mr Bayly highlighted the differences between the “old Country Information” and the up-to-date information (2019 information) and in particular, relied on those aspects of the 2019 information that record acts of violence and harms perpetrated on borrowers. He also referred to paragraph 3.112 of the 2019 information that reported that authorities in Malaysia tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. It was submitted that the 2019 information gave credibility to the applicant’s claims and should have been assessed by the Tribunal when reaching any conclusion regarding the credibility of the applicant’s claims (see Plaintiff S183/2021 at [59] per Gordon J) and when assessing whether there were effective protection measures available to the applicant as defined in s 5J(2) of the Act. It was submitted that this was a material jurisdictional error of the kind identified in BMP15.
It was also submitted that the Tribunal’s error was material because the Decision could realistically have been different if the Tribunal considered the correct country information. The standard of reasonable conjecture is undemanding (see Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] (Nathanson) and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 153; [2024] HCA 12 at [14] (LPDT)). Another decision-maker may take into account the possibility that the applicant will suffer harm or that events are likely to occur consistent with the observations in the 2019 information about violence and harm to borrowers and their families and effective protection measures (see AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 912 at [32]–[33] per Jackson J (AXD21)).
In support of this submission, Mr Bayly referred to paragraphs [39]–[47] of the Decision which he said were cumulative and that if any one part of those cumulative conclusions had been different then the finding about credibility could “realistically” have been assessed differently (CB 175-6). Examples were given of how each of the findings in [40], [43] and [46] could have been different if the 2019 information had been considered by the Tribunal or put to the applicant when giving evidence (CB 175-6) (see also ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [24] (ARG15) and DJF18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1327 at [27] per Judge Cuthbertson). Therefore, the application for judicial review should be allowed, the Decision quashed and the matter remitted to the Administrative Review Tribunal to be determined in accordance with law.
MINISTER’S SUBMISSIONS
Mr McDermott focused his submissions on the issue of materiality. It was accepted that the error identified by the applicant was an error of the kind considered by the majority decision of the High Court in LPDT at [30] and [31] (i.e. failing to comply with Direction No. 84 in breach of s 499(2A) of the Act, which was a breach by a statutory decision maker of a condition governing the making of a decision).
The Minister submitted that the decision of the Tribunal would have been inevitably the same had the Tribunal had regard to the 2019 information. This was because the findings as to credibility made by the Tribunal in the Decision were substantially made without any reference to any country information and were based on the Tribunal’s assessment of the applicant as a witness. Mr McDermott joined issue with the applicant’s submission that the findings as to credit by the Tribunal were “cumulative”. It was submitted that each of the findings in paragraphs [40] to [46] of the Decision (CB 175-6) were stand-alone findings and based on the findings of fact identified in paragraphs [21]–[35] of the Decision (CB 173-4). The Tribunal reached each of the findings because of the paucity of relevant records regarding the alleged loan and the contradictory evidence of the applicant in his application for the visa and at the hearing before the Tribunal as to physical harm suffered at the hands of the lender. This led the Tribunal to conclude at [44] of the Decision that the applicant’s claims were “manufactured” (CB 176).
It was submitted that the Tribunal also reached the “additional and independent” finding at [46] of the Decision that the applicant would be able to obtain access to effective state protection (CB 176). Even if that finding had not been made based on the 2019 information the findings as to credibility would not have been different. The Court could not comfortably conclude that the applicant’s credibility might be assessed differently because of the 2019 information. There was no “realistic possibility” that the outcome of the Decision could have been different had the error not been made. The dispositive findings were made without reference to the country information or any other event. They were based on the applicant’s evidence and lack of corroborating documents. The Minister also relied on DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [46]-[52] per Beach J, where his Honour gave examples of where erroneous findings of fact may not result in a materially different outcome.
The Tribunal was entitled to find on the applicant’s evidence that the applicant’s claims were manufactured, especially given the absence of evidence on the existence of purported loan and absence of records generally. The 2019 information did not undermine those finding and there was no material jurisdictional error. Mr McDermott also sought to distinguish the decisions in Plaintiff S18/3/2021, BMP15 and BYH19 as turning on their own facts where the Tribunal decisions were considered irrational, illogical or unreasonable and therefore involved material jurisdictional error.
It was submitted that the application for judicial review should be dismissed with costs.
CONSIDERATION
In BMP15, O’Callaghan J considered the failure by the Tribunal to comply with s 499 of the Act. In that case, the Tribunal conducted a review of a decision of a delegate of the Minister to refuse to grant the applicant (BMP15) a Protection visa. The applicant in that case then sought judicial review by the then Federal Circuit Court. A Judge of that Court dismissed the application for judicial review. The applicant then appealed to the Federal Court. There were three grounds of appeal. The third was that the learned trial judge erred in failing to find that the Tribunal had fallen into jurisdictional error by failing to consider the most recent country information assessment prepared by DFAT. The jurisdictional error alleged was a failure to follow s 499 of the Act and Ministerial Direction No. 56. His Honour said the following at [24] and [25]:
[24] It is convenient to deal first with Ground 3.
[25] It is put in two ways – first, that the Federal Circuit Court erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act in that it failed to take into account the most recent country information assessment prepared by DFAT and secondly, that the Tribunal took into account an irrelevant consideration, viz the superseded DFAT Country Information Report for Sri Lanka dated 31 July 2013 (the 2013 DFAT Report) and thus fell into jurisdictional error. In my view, on a proper reading of the Tribunal’s reasons, those submissions must be accepted.
At [33], his Honour said:
[33] Section 499(2A) of the Migration Act requires a person or body (which relevantly includes the Tribunal) to comply with ministerial directions made under s 499(1) of the Migration Act. Ministerial Direction No 56 of 21 June 2013, which is made under s 499(1) of the Migration Act, requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. It states:
… 3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision make must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
In this case, Ministerial Direction No. 84 is in substantially the same terms as the Ministerial Direction in BMP15 and was made pursuant to s 499 of the Act (Exhibit R2). The Decision reflects that the Tribunal considered the Country Information Report - Malaysia dated 19 April 2018, but did not consider the more recent Country Information Report -Malaysia dated 13 December 2019. That was a failure to comply with s 499(2A) of the Act and Ministerial Direction No. 84. The Tribunal therefore took into account an irrelevant consideration (the Country Information Report - Malaysia dated 19 April 2018) and failed to take into account a relevant consideration (Country Information Report - Malaysia dated 13 December 2019). It could also be said that the Tribunal ignored relevant material. In doing so, the Tribunal fell into an error of the kind recognised by the High Court in LPDT at [3] (see also Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177 and 179; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 43 at [30], [70]-[72]; BMP15 at [34] [37]–[38] and AXD21 at [34]).
In LPDT at [9] and [10], the Court said:
[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
[10] The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.
At [14]-[16] the Court said:
[14] The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
[15] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
[16] In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Therefore, the issue to be determined by this Court is, having identified an error, whether that error was material. In sum, has the applicant established that there exists a realistic possibility that the outcome of the Decision could have been different had the error not been made?
The evidence of the applicant summarised at [21]–[31] of the Decision and the statements made by the applicant in the Form 866 led the Tribunal to conclude that the applicant’s claims for protection were “manufactured”. Certainly, the applicant’s claims were not assisted by the absence of documents and inconsistencies in his evidence. The assessment of credibility is also a matter for the Tribunal and is an impressionistic one (see SZTFQ at [44] per Lee J). For example, in the Form 866 the applicant claimed to have been “hit” until he was required to “stay in hospital” whereas paragraph [32] of the Decision records evidence that the applicant was not injured. There were no documents produced by the applicant that could support any of his claims. None were produced to this Court either to assist the applicant in the burden of persuasion that the outcome of the Decision could have been different.
The findings of the Tribunal in paragraphs [40]-[44] of the Decision were not cumulative. Each finding was made based upon different rather than a cumulative consideration of facts. The language used by the Tribunal does not suggest that the findings as to credit were reached cumulatively. The conclusions reached in paragraph [44] were based on individual findings about different aspects of the applicant’s evidence which led to the conclusion that the claims were manufactured. That conclusion was open but was not assessed against the December 2019 assessment. The weight given to the evidence is a matter for the Tribunal (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per R D Nicholson J). However, where there has been a failure to consider information that could corroborate the applicant’s claims or at least give them greater weight there is a realistic possibility (as opposed to a fanciful possibility) that had the error not occurred there may have been a different outcome.
The difficulty is that the Tribunal did not consider or assess these claims in the “context” of the Country Information Report - Malaysia dated 13 December 2019 as it was required to do. As Justice Gordon observed in Plaintiff s183/2021 at [59] the country information provides context for the assessment of a visa applicant’s claims. The inquiries are not siloed. Further, the assessment of credibility “if properly formed, takes into account all of the evidence” (SZTFQ at [44] per Lee J). Therefore, the findings as to credit may be different when the evidence of the applicant is considered in the context of the December 2019 and not the April 2018 assessment. It is also realistically possible that the findings as to effective protection measures available to the applicant may be different based on the additional information contained in the December 2019 assessment. That possibility was not considered by the Tribunal in the Decision and may be considered differently by another decision-maker (see AXD21 at [32]).
In BMP15 O’Callaghan J was satisfied that the failure to consider country information in breach of a Ministerial Direction was a material jurisdictional error. The threshold is undemanding (Nathanson at [33] and LPDT at [14]). Whilst the evidence of the applicant before the Tribunal was not persuasive to that Tribunal that is not to say another Tribunal could not reach a different result upon consideration of all the evidence including up to date country information in accordance with the Ministerial Direction and s 499(2A) of the Act.
The hearing before the Tribunal was also conducted by telephone during the COVID-19 pandemic (CB 150 [18]). There are practical as well as forensic difficulties in assessing the credibility of witnesses by that medium. Mr Bayly for the applicant also referred to the general observations of the need for care and caution when assessing the veracity of applicants for protection visas (see AVQ15, Rajalingam and SZTFQ cited above). All of which are valid considerations when considering the context of the applicant’s claims for protection. There is a realistic possibility that had the evidence of the applicant been put in the context of and tested against the Country Information Report - Malaysia dated 13 December 2019 a different outcome “could” as opposed to “would” result.
There was a jurisdictional error by the Tribunal in failing to consider the most recent country information in breach of s 499(2A) of the Act and Ministerial Direction No. 84 and in the circumstances of this case that error was material. The Decision will be quashed and the matter remitted to the Administrative Review Tribunal to be determined in accordance with the law.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs which is the current Ministerial title.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent should also be amended to the Administrative Review Tribunal.
COSTS
The Court will hear the parties on the question of costs.
ORDERS
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.A writ of certiorari be issued to quash the decision of the Administrative Appeals Tribunal made 6 March 2019.
4.A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review filed 12 July 2019 according to law.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 3 March 2025
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