DDK18 v Minister for Citizenship, Immigration and Multicultural Affairs
[2024] FedCFamC2G 793
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDK18 v Minister for Citizenship, Immigration and Multicultural Affairs [2024] FedCFamC2G 793
File number(s): MLG 1717 of 2018 Judgment of: JUDGE RILEY Date of judgment: 29 August 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal erred by requiring the applicant to provide corroborative evidence – whether the Tribunal erred by failing to assess the applicant’s credibility having regard to her having been in an abusive relationship – whether the Tribunal erred by not taking into account the Tribunal’s Guidelines on Vulnerable Persons – whether the Tribunal erred by not inviting the applicant to comment on the five year delay between her arrival in Australia and her application for a protection visa. Legislation: Migration Act 1958 ss.425, 499 Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98; [2001] FCA 1041
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; [1986] HCA 40
MZYHT v Minister for Immigration and Citizenship [2011] FCA 659
SZUZK v Minister for Immigration and Border Protection [2016] FCA 498
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 29 May 2024 Place: Melbourne Counsel for the Applicant: Eugenia Levine Solicitor for the Applicant: Victorian Legal Aid Counsel for the First Respondent: Joshua Lessing Advocate for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Mills Oakley ORDERS
MLG 1717 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDK18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed on 18 June 2018 and amended on 8 May 2024 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.
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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
BACKGROUND
In his written submissions filed on 20 May 2024, the Minister provided the following background to this matter:
10. In her protection visa application, the applicant claimed to be at risk of harm from her husband and father of her two children, who lived in Malaysia: CB 39-41. She claimed that he had beaten her and the children, and that she was mentally and physically tortured by him. She claimed that he had threatened to sell the children, and to prostitute the applicant to his friends. The applicant claimed that her husband had once beaten her unconscious and fractured her arm, and that she was admitted to the hospital, but that her husband lied to the doctor and told them that she had fallen down.
11. At the Tribunal hearing, the applicant gave evidence that she had separated from her husband 4 years prior to coming to Australia in 2010, that they were now divorced, and that she did not have any trouble or contact from him during the four years they were separated: CB 100, [22]. She gave evidence that her children live with her mother and older sister in Penang and that her ex-husband sees the children once a month: CB 101, [23]. The applicant maintained her claims that her ex-husband beat her and her children and that she had been admitted to hospital: CB 101, [23]-[25]. She claimed that her ex-husband would prevent her seeing her children: CB 101, [27].
12. At the Tribunal hearing, the applicant also claimed that she had also been in an abusive relationship in Australia with a Malaysian national: CB 99, [12]; CB 101, [29]. She gave evidence that this man was now deceased and provided the Tribunal a death certificate: CB 84; CB 101, [29]. She also provided a debt notice issued to the man with whom she had been in a relationship: CB 85.
13. Two friends of the applicant gave oral evidence about their friendship with the applicant and their hope that she would be granted a visa: CB 89; CB 101, [30]. The applicant also provided a statement from one of these friends as to the financial support he had provided her in Australia, a letter from her employer about her employment in Australia, and documents regarding the financial support she was receiving: CB 82-88.
14. She said the reason she came to Australia was to make money: CB101, [28].
THE TRIBUNAL’S DECISION
In his written submissions, the Minister provided the following summary of the Authority’s decision:
15.The Tribunal set out principles relating to credibility assessments: [16] – [20].
16. The Tribunal noted the applicant’s claim that she was living with a Malaysian man in Australia who was abusive and controlling. The Tribunal accepted that this was certainly possible, but that it was unrelated to her claims for protection: [29].
17. The Tribunal then set out a number of concerns with the applicant’s credibility and her claims to fear harm from her ex-husband, her now deceased ex-partner and her fear of returning to Malaysia: [31].
18.The Tribunal noted the applicant’s evidence at the hearing that she was separated from her ex-husband from 2006 to 2010 when she arrived in Australia, that she had no contact with him during those four years, and he had not caused any trouble for her or her children during those four years. The Tribunal also noted the applicant’s evidence at the hearing that she had not had contact with her ex-husband since her arrival in Australia. The Tribunal found that this was a significant period of time in which the applicant had not had any contact with her ex-husband, and that her claimed fear that she or her children would be sold or harmed by her ex-husband was unfounded given the children had remained in Malaysia without her for almost eight years and nothing had happened: [32].
19.The Tribunal found that the applicant had been in Australia for five years before she applied for the visa, and that if the applicant had really felt threatened and fearful of her ex-husband and came to Australia to seek refuge she would have applied for protection much earlier. The Tribunal found that the delay led it to consider that her claims were not genuine: [33].
20. The Tribunal found that the applicant’s evidence at the hearing that she was concerned about finding a job if she returned to Malaysia led it to the view that this was her concern, and not her ex-husband: [34].
21. The Tribunal acknowledged the applicant’s evidence that she had been in an abusive relationship with a Malaysian man while living in Australia, but found that since the man was deceased this was “unrelated” to the applicant’s claims for protection: [35].
22. The Tribunal noted that it had requested specific documents from the applicant, and that she had not responded to the request: [36]-[37]. It found that without these documents it could not be satisfied that the applicant actually had any children given they are not listed as family members in her visa application and she did not provide any specific details about them. Nor could the Tribunal be satisfied that the applicant was married and divorced as claimed: [37].
23. On the basis of the concerns summarised above, the Tribunal concluded that the applicant was not a credible witness and did not accept that her ex-husband had abused her and beaten her and her children. The Tribunal did not accept that the applicant feared that she or her children would be sold, or that she would be prostituted, by her ex-husband: [38]. The Tribunal found that the applicant’s claims had been fabricated or embellished solely for migration purposes: [39].
24. The Tribunal concluded that the applicant did not face a real chance of persecution, or a real risk of significant harm, in Malaysia and that she did not satisfy ss 36(2)(a) or (aa) of the Act: [38]-[41]. The Tribunal accordingly affirmed the decision under review: [45].
MATERIAL RELIED UPON
The applicant relied upon:
(a)her application filed on 18 June 2018 and amended on 8 May 2024 (“the application”);
(b)the court book filed on 2 October 2019;
(c)her written submissions filed on 8 May 2024;
(d)the affidavit of Natalie Young sworn or affirmed on 8 May 2024; and
(e)her list of authorities filed on 27 May 2024.
The Minister relied upon:
(a)his response filed on 20 July 2018;
(b)the court book filed on 2 October 2019;
(c)his written submissions filed on 20 May 2024; and
(d)his list of authorities filed on 22 May 2024.
GROUND 1
The first ground of review in the application is:
The Tribunal made a jurisdictional error in its decision of 18 May 2018 (Decision) by requiring that the Applicant provide corroborating documentary evidence to substantiate her claims that she had children, had been married and divorced, and had been beaten by her ex-husband.
Particulars
(a)At [36] of the Decision (CB102), the Tribunal referred to requesting that the Applicant provide, within seven days, birth certificates for both her children, a marriage certificate and divorce certificate for her ex-husband, documentation related to her hospitalisation after her husband’s beatings, and police reports related to her husband’s beatings.
(b)At [37] of the Decision (CB102), the Tribunal stated “The applicant did not respond to the Tribunal on this request. Without these documents the Tribunal cannot be certain that the applicant has any children as they were not listed in her visa application nor did the applicant provide any details such as names and dates of birth for her children. Nor can the Tribunal be certain she was married, divorced and beaten by her ex-husband. The applicant did not provide any documentation of any kind.”
(c)The reasoning at [36]-[37] of the Decision is infected with jurisdictional error in that the Tribunal wrongly imposed the requirement of documentary corroboration with respect to foundational aspects of the Applicant’s claims which were described in the Applicant’s visa application, and as to which the Applicant gave evidence before the Tribunal.
(d)The error was material.
In relation to ground 1, the parties relied on MZYHT v Minister for Immigration and Citizenship [2011] FCA 659, where the Federal Court said as follows:
42.In Eshetu v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 203, Hill J stated that the Tribunal must not approach its task on the basis that an applicant’s claim to refugee status will not be accepted without some independent corroboration.
43. It is clear that the applicant’s own statements and testimony constitute evidence and there is no requirement as a matter of law that the applicant provide corroboration. In Machmud (a case on which the appellant particularly relied) Hill J reiterated (at [16]):
There is also the suggestion on the part of the tribunal that there is some necessity for an applicant to the tribunal to “substantiate” claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word “substantiate” is defined in the Macquarie Dictionary 3rd ed as follows “1. to establish by proof or competent evidence … 2. to give substantial existence to. 3. To present as having substance”. The ordinary English use might suggest that the tribunal member did not regard the applicant’s statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the tribunal corroborate, if that is what the tribunal meant, a statement made.
44.In Machmud, Hill J held that error on the above basis was not established, as the Tribunal’s reasons should not be construed pedantically and, although it lacked precision, the Tribunal’s reference to there being “meagre evidence available to [it]” indicated that it had treated the appellant’s statement as evidence (at [17])
45.In MZXSA, the Full Court applied the reasoning in Warnakulasuriya in rejecting a very similar ground of appeal to that in the present case, which alleged that “the tribunal impermissibly insisted that the appellant’s claims would not be accepted without corroboration by “independent third party evidence’” (at [87]).
46. The Full Court observed that, as in the present case, the Tribunal was clearly troubled by a number of aspects of the appellant’s account, considered some parts “were unhelpfully general in nature” and aspects of it implausible (at [89]). The Full Court stated that some of the Tribunal’s statements about the need for third-party independent evidence might, when taken in isolation, suggest that it was required as a matter of legal standard, but “[p]roperly understood in its context” conveyed “no more than an expressed desire to be furnished with independent information to support an aspect of the appellant’s account that, on present material, the tribunal found to be unconvincing” (at [90]).
…
52.As the appellant conceded, in the present case the Tribunal gave extremely comprehensive, lengthy and detailed reasons. It also (at [106] to [108] of its reasons) set out relevant principles and authorities recognising that there was no onus of proof, that the Tribunal should accord the benefit of a doubt to asylum seekers who were generally credible but unable to substantiate all of their claims, and that if the Tribunal could not make an adverse finding on a material claim with confidence, it must assess it on the basis that the claim might possibly be true.
53.While the Tribunal did not expressly state the principle articulated in Machmud, on a fair reading, the reasons as a whole were consistent with it and with the related principles the Tribunal expressly acknowledged at various points throughout the judgment. There was, in my opinion, no indication that in practice the Tribunal imposed an onus of proof on the appellant and insisted upon corroboration and substantiation of his claims by documentary or other independent evidence
MZYHT affirmed the principle that applicants in migration matters should not be required to provide corroborative evidence for their claims. Nevertheless, in MZYHT, as in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98; [2001] FCA 1041, the court found that the Tribunal did not transgress that principle. That was partly because the Tribunal in MZYHT recorded in its reasons the correct approach to credibility assessments. The Tribunal did the same in the present matter, in paragraphs 16 to 20 of its reasons for decision.
Also in MZHYT, the court noted that the Tribunal’s reasons for decision must be construed fairly and as a whole, and that the Tribunal’s reasons for decision, understood properly and in context, meant that the Tribunal was unpersuaded of certain claims, rather than that it impermissibly imposed a requirement for corroborative evidence.
In the present case, the Tribunal’s reasoning in relation to the birth certificates and other documents was part of its reasoning in relation to the credibility of the applicant’s claims overall. That reasoning was as follows:
32.First, the applicant was separated from her ex-husband from 2006 until 2010 when she arrived in Australia. When asked during the hearing what contact she had with her exhusband during those four years she said none. Further, when asked if her ex-husband had caused any trouble for her or her children during those four years she said no. When asked if she had contact with her ex-husband since being in Australia the applicant said no. The applicant arrived in 2010 and appeared before the Tribunal in 2017. In those seven years she has not had contact with her ex-husband. The Tribunal finds this a significant period of time in which the applicant has had no contact whatsoever with her ex-husband. The claimed fear that she or her children will be sold or harmed by the ex-husband is unfounded given that the children have remained in the country without her for almost eight years now in the care of the applicant’s mother and nothing has happened.
33.Secondly, the applicant was in Australia for five years before she applied for a protection visa. If the applicant had really felt threatened and fearful of her ex-husband and came to Australia seeking refuge the applicant would have applied for protection when she arrived instead the applicant waited five years before applying. The Tribunal considers that if the applicant had a genuine and urgent fear of persecution arising out of her circumstances, the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to a consideration that her claims in this regard are not urgent or genuine.
34.Third, the applicant stated at the Tribunal hearing that she was concerned that if she went back to Malaysia she would not be able to get a job to support her daughter who wants to go to law school. Her daughter has been living with her mother but her mother is getting old and her eyesight was getting bad. This as evidenced by the applicant’s own words that she is concerned about how she can obtain employment upon return to Malaysia and not out of concern for her ex-husband.
35.Fourth, the applicant told the Tribunal that she was in an abusive relationship with a Malaysian man whilst she was living in Australia. The applicant submitted the death certificate of the man who died in 2015. Since the relationship has ceased as the man in question is deceased the Tribunal did not take the relationship into consideration when making its findings on the claims for protection.
36.Fifth on 9 May 2018 the Tribunal requested that the applicant provide the Tribunal with the following documents within seven days:
•Birth certificates for both her children
•A marriage certificate and divorce certificate for her ex husband
•Documentation related to her hospitalisation after her husband’s beatings
•Police reports related to her husband’s beatings
37.The applicant did not respond to the Tribunal on this request. Without these documents the Tribunal cannot be certain that the applicant has any children as they were not listed in her visa application nor did the applicant provide any details such as names and dates of birth for her children. Nor can the Tribunal be certain she was married, divorced and beaten by her ex-husband. The applicant did not provide any documentation of any kind.
38.Given these concerns the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s claims that her ex-husband abused her and beat her and her children. It follows that the Tribunal does not accept that the applicant fears that she or her children will be sold, or that her ex-husband wanted to prostitute her out. Based on the same credibility findings the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including that the applicant will suffer significant harm based on these claims, both individually and cumulatively considered.
As can be seen, the Tribunal did not require the applicant to produce corroborating documents. Rather, the Tribunal noted that, even though it had requested the applicant to provide documents (being documents most of which would have existed if her claims had been true) the applicant did not do so. That led the Tribunal to be unsure that the applicant even had children or an ex-husband, especially in circumstances where the applicant had not given the names or dates of birth of her supposed children in answer to question 43 on her protection visa application form. The applicant referred generically to her children in narrative answers to questions on her protection visa application form, but did not provide any identifying information about them.
The point about the applicant not providing documentary evidence was the Tribunal’s last point in its assessment of the applicant’s credibility. The other points were clearly more prominent in the Tribunal’s reasoning process. They were:
(a)the applicant had lived for four years in Malaysia after separating from her ex-husband without coming to harm, and, on the appliant’s account, her children had lived in Malaysia for a further seven years without coming to harm;
(b)the applicant did not apply for a protection visa until she had been in Australia for five years; and
(c)the applicant told the Tribunal that she came to Australia because she needed money, rather than because she feared harm from her ex-husband (Tribunal transcript: Tr.111.5-19).
In relation to the supposed children, the Tribunal also noted at paragraph 27 of its reasons for decision the applicant’s inconsistent evidence at the hearing as follows:
The applicant told the Tribunal that her daughter who is now 20 years old wants to study law and she fears if she returns to Malaysia she will not be able to get a job to support her daughter. She said she also feared since her ex-husband has custody she won’t be able to see her children. However, the applicant stated earlier during the hearing that the children have been living with her mother from 2006-2010 along with the applicant, and from 2010-2018 (present) with the applicants mother in Penang. Her children have not lived with their father for 12 years.
Read fairly and as a whole, notwithstanding paragraph 37 of its reasons for decision, the Tribunal seems to have proceeded on the basis that the applicant did have children and an ex-husband in Malaysia. The Tribunal seems to have accepted in paragraph 32 of its reasons for decision that the applicant’s children had lived in Malaysia for eight years without her, and she had an ex-husband in Malaysia who had had no contact with her for 14 years. The Tribunal also seems to have accepted in paragraph 34 of its reasons for decision that the applicant was concerned about how to pay for her daughter to attend law school.
In context, the Tribunal’s statements in paragraph 37 of its reasons for decision about the applicant not providing documents were not imposing a requirement for corroborative evidence. They were simply recording an aspect of the applicant’s case.
Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
The Tribunal constructively failed to exercise jurisdiction and/or to discharge its statutory task by failing, in the context of its credibility assessment, to have regard to evidence of the Applicant having been in an abusive and controlling relationship with a Malaysian man in Australia for several years.
Particulars
(a)The Applicant gave evidence before the Tribunal that she had been in an abuse and controlling relationship with a Malaysian man in Australia, and this man’s treatment of her until his death in April 2015 included physical violence, threats to have hitmen kill her children if she did not do all the things he asked of her, and ‘pimping’ the Applicant ‘to a few people for some money’.
(b)The Tribunal did not have regard to this evidence in assessing the Applicant’s credibility and expressly rejected the fact of the Applicant having been in such an abusive relationship as irrelevant (Decision at [29] (CB101)).
(c)The history of the Applicant’s abusive relationship in Australia was, in fact, highly significant in the context of the Tribunal’s task of assessing the Applicant’s credibility.
(d) The error was material.
The Tribunal dealt with this issue at paragraph 35 of its reasons for decision, which is set out above, and also at paragraph 29, which is as follows:
The applicant claimed she was living with a Malaysian man in Australia and he was abusive and controlling. The applicant then produced a death certificate for the man. The Tribunal finds that the whilst it was certainly possible that the applicant was in an abusive relationship with this Malaysian man whilst living in Australia this has ended as the man has died and the applicant is now living with another man and the issue is unrelated to her claims for protection.
The applicant submitted that the Tribunal failed to have regard to the abusive relationship with the man in Australia when assessing the applicant’s credibility, and, in particular, the five year delay in her lodging her protection visa application, and the fact that her evidence was “jumbled and unclear”: [21]. The applicant submitted that the Tribunal should have assessed the applicant’s claims through a trauma-informed lens.
The applicant relied on AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133 where the Full Court of the Federal Court said at paragraphs 41(b) and (c) that:
(b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
In the present case, the Tribunal did not say that the applicant’s evidence in general was “jumbled and unclear”. That assessment was only made in relation to the applicant’s claim about a Mr Wen who worked in the Department and who she said could get her a visa for $5,000. Having read the transcript of the hearing before the Tribunal, it was not generally “jumbled and unclear”, except the very small part of the applicant’s evidence dealing with Mr Wen. That suggests that the applicant’s evidence about Mr Wen was not “jumbled and unclear” for trauma reasons, but because she was confused about that particular issue.
The applicant did not claim that the reason for the five year delay in lodging her protection visa application was because she had suffered family violence. Having said that, the Tribunal did not ask the applicant for an explanation for that delay, and nor was it obliged to.
Even without the five year delay, the credibility issue that the Tribunal identified first, and which it presumably considered the most serious, was that the applicant had lived in Malaysia for four years after her relationship with her ex-husband ended without coming to any harm from him, and her children had lived in Malaysia for a further eight years without coming to any harm from him. These circumstances could not be seen differently through a trauma-informed lens. They meant, in the Tribunal’s view, that the applicant’s claimed fear of her ex-husband was not well-founded. Moreover, the applicant told the Tribunal that the reason she did not wish to return to Malaysia was so that she could earn money to send her daughter to law school, rather than because she was afraid of her ex-husband.
The Tribunal’s assessment of credibility in this case was reasonable and logical. It does not seem to me that a trauma-informed lens would have changed the basic calculus. Ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
The Tribunal made a jurisdictional error in failing to take into account a relevant consideration, being the Guidelines on Vulnerable Persons (Guidelines) in force at the time of the Decision.
Particulars
(a)The Guidelines addressed the way in which vulnerable persons (such as the Applicant) may be expected to participate in the review process, and the various constraints on the capacity of such vulnerable persons to participate in the review process.
(b)The Guidelines had the capacity to impact the way in which the Tribunal approached its task of assessing the Applicant’s credibility.
(c) The Tribunal was required to, but did not, take the Guidelines into account.
(d) The error was material.
The Guidelines on Vulnerable Persons are contained in Annexure NY-3 to the affidavit of Natalie Young sworn or affirmed on 8 May 2024. They were issued by the Migration and Refugee Division of the Tribunal. They are not Ministerial directions under s.499 of the Migration Act 1958.
The applicant acknowledged that the most recent Federal Court authority on this point is SZUZK v Minister for Immigration and Border Protection [2016] FCA 498 at [22], which was to the effect that the Tribunal’s own Guidelines on Vulnerable Persons is not a mandatory consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; [1986] HCA 40 at [39]-[40].
The applicant argued that SZUZK had failed to take into account earlier decisions of the Federal Court to the opposite effect. However, the applicant acknowledged that it is not open to this court to refuse to follow the most recent applicable Federal Court authority on the basis that it was per incuriam. Ultimately, the applicant merely wished to preserve her position for any subsequent proceedings.
In view of SZUZK, ground 3 cannot succeed. It is also possibly arguable that the Tribunal, without specifically identifying the Guidelines, actually complied with them. They suggest, for example, in paragraph 43, that the Tribunal member ask questions “in a sensitive and respectful manner” and in a way that the person understands. The Tribunal seems to have done that. The applicant did not point to any particular thing the Tribunal did that was contrary to the Guidelines. However, as that point was not argued, I take it no further.
GROUND 4
The fourth ground of review in the application is:
The Tribunal failed to comply with the obligation in s 425(1) of the Migration Act 1958 (Cth) to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, in that the Tribunal failed to put to the Applicant for comment the issue of there being a delay between her arrival in Australia and her application for a protection visa.
Particulars
(a)At [33] of the Decision (CB 102), the Tribunal relevantly stated: “…The Tribunal considers that if the applicant had a genuine and urgent fear of persecution arising out of her circumstances, the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to a consideration that her claims in this regard are not urgent or genuine.”
(b)The Tribunal did not put to the Applicant during the hearing the issue of there being a delay between her arrival in Australia and her application for protection.
(c)The issue of delay was a critical issue on review, being one of the key reasons why the Tribunal reached a negative credibility assessment of the Applicant.
(d) The error was material.
The delegate, in her decision, identified the delay of five years in the applicant applying for a protection visa. The delegate said, at CB63:
This significant delay in applying, of almost five years, makes me further question the authenticity of her claims …
The delay in seeking protection [and other things] all suggest that the applicant applied for a protecton visa in order to remain in Australia.
Generally, because the delegate had clearly raised the issue and relied on it in making a decision against the applicant, the applicant would be taken to have been on notice about the issue and could not succeed on this ground.
However, the applicant said that she was not on notice, because she did not attend the interview with the delegate, and had not had the opportunity to comment on this issue. That is not so. The applicant had an opportunity to attend an interview with the delegate. However, she did not avail herself of that opportunity.
The applicant also said she was not effectively put on notice about the issue of delay because she was not represented. That argument is wholly without merit.
In any event, the basic problem with this ground is that the Tribunal is under no obligation to alert the applicant to known facts. The applicant well knew that she arrived in Australia on 25 February 2010 as the holder of an Electronic Travel Authority and that she applied for a protection visa five years later, on 18 February 2015. Characterising those five years as a delay, which cast doubt on the genuineness of the applicant’s alleged fear of returning to Malaysia, was part of the Tribunal’s thought processes. The Tribunal is under no obligation to alert an applicant to how it perceives or characterises known facts.
Ground 4 is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application must be dismissed with costs. I will hear the parties on the quantum.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 29 August 2024
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