DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 393
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 393
File number: MLG 2658 of 2022 Judgment of: JUDGE FORBES Date of judgment: 18 May 2023 Catchwords: MIGRATION - application for judicial review of the decision of Administrative Appeals Tribunal – refusal to grant protection visa – where applicant claimed to fear persecution due to relationship with Christian partner and as father to 3 children born out of wedlock – where de facto partner expressed an intention to consider returning to Sudan with applicant – whether delegate made finding as to whether partner would return – whether veracity of partner’s evidence was an issue arising in relation to the delegate’s decision – whether applicant required to be on notice of any potential finding by Tribunal inconsistent with partner’s statement – whether failure to provide notice is jurisdictional error Legislation: Migration Act 1958, ss 36, 422, 425, 430 Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DSW v Minister for Immigration and Border Protection [2020] FCA 107
EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000
Minister for Immigration and Citizenship v Applicant A125 [2007] FCAFC 162
Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs [2022] HCA 26
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZLPH v Minister for Immigration and Border Protection [2018] 266FCR 105
Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
Division: Division 2 General Federal Law Number of paragraphs: 109 Date of hearing: 24 April 2023 Place: Melbourne Solicitor for the Applicant: Zarifi Lawyers Counsel for the Applicant: Mr Fitzgerald Solicitor for the Respondents: Mills Oakley Counsel for the Respondents: Mr Barrington ORDERS
MLG 2658 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWK22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
18 may 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 13 April 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,100.
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 FORBES
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 October 2022 which affirmed a delegates decision not to grant him a protection visa.
The applicant relies upon a single ground of review: that the Tribunal fell into jurisdictional error by failing to comply with s 425 of the Migration Act 1958 (‘the Act’) or, alternatively, with its residual procedural fairness obligations at general law.
For the reasons set out below, I have determined that the Tribunal’s decision was not affected by error and that the application should be dismissed.
BACKGROUND
The applicant is a 33 year old male citizen of Sudan. He arrived in Australia on 19 May 2009 as an 18 year old holding a global humanitarian visa.
In October 2013 the applicant commenced an application to confer citizenship. This was refused in July 2014. In August 2020 a delegate commenced a cancellation of the applicant’s global humanitarian visa on character grounds relating to a history of criminal offending. The applicant’s visa was cancelled by a delegate on 3 September 2020 and the applicant became an unlawful non-citizen and was subsequently taken into immigration detention.
On 11 June 2021, the applicant applied for a protection visa. He claimed, among other things, that:
(a)he was born in Khartoum and belonged to the Nuba Tribe;
(b)he had been forced to be a child soldier in the Red Army;
(c)his family fled to Egypt in 2004 to escape civil war and remained there until they resettled in Australia;
(d)he suffered from “severe mental health issues” and, if returned to Sudan, he would face discrimination and significant barriers in accessing mental health care and would have no access to social welfare, housing or unemployment benefits;
(e)he feared he would be killed or forced to join the Nuba tribal group to fight rival groups;
(f)the Sudanese government was corrupt and would not protect him;
(g)he feared harm from the militia, criminal networks and the authorities as a western returnee; and
(h)if deported to Sudan, he would face persecution for his membership of a particular social group, being a Muslim person who had 3 interracial children born out of wedlock to Christian partners, all of whom were Australian citizens.
On 6 July 2021 following his application interview the applicant’s solicitors received an email from the delegate which confirmed a request for further information. Relevantly, among the information sought, the applicant was requested to provide evidence of his relationship with his de facto partner and a signed statutory declaration from his partner to confirm that she remained in a de facto relationship with the applicant, was supportive of the applicant and intended to remain a part of his life if he is to return to Sudan, that she intends to travel to Sudan with their children on a temporary basis to visit him, what she fears will happen if she returns to Sudan with the children and the extent of financial support she will be able to provide the applicant if he returns. The applicant was also invited to elaborate on his claim of being a target because of his long term relationship with a caucasian woman of Christian ethnicity and to explain why his children would travel to Sudan if he knew that might place him, them or his de facto partner in danger[1].
[1] Court Book (‘CB’), p 674
In support of his application, the applicant relied (among other things) on various statements, including his own statement dated 23 August 2021[2] and a statement of his de facto partner dated 20 September 2021[3].
[2] CB 737
[3] CB 777
In his statement dated 23 August 2021 the applicant set out his claims and said, among other things “I also confirm that partner and my children will regularly visit me if I am sent back to Sudan….”[4].
[4] CB 738
In her statement dated 20 September 2021, the applicant’s partner said, among other things:
[18]…It is my genuine intention to remain in this relation[ship] and support my long-term partner on his journey to recovery…
[19]If… a decision was made by the Australian government to deport [the applicant] to Sudan, it is my genuine intention that I will consider returning to Sudan with him…
[20]I and [the applicant] have… spoken about this for some time now and it may not be possible due to financial and practical difficulties for me and the kids to regularly visit [the applicant] on a temporary basis in Sudan. So the only solution is just to move their (sic) and jeopardise our lives because we have no other option.
…
[27]…It is no doubt our intention and family planning that we will have at least two more children in future.
The de facto wife’s statement of 20 September 2021 also described in some detail various mental health and medical issues from which she suffered. She also described various risks and hardships she, her children and the applicant would face if they were to relocate to Sudan. She stated “I and my children as well as my partner will face insurmountable hardships in Sudan”.[5]
[5] CB 775
Delegate’s decision
On 19 November 2021, the Department notified the applicant that a delegate of the Minister had refused his application.
In the decision record[6], the delegate accepted that the applicant identified as Muslim, that he and his partner were in a de facto relationship and that he had 3 children out of wedlock (two of whom were with his current partner). In relation to the likelihood of the applicant’s partner and their two children returning with the applicant to Sudan, the delegate noted as follows[7]:
At interview the applicant was asked whether he would be returning to Sudan with his partner and their 2 children. He stated that his partner had told him that she would visit him on a temporary basis but that she would not stay permanently because the situation in Sudan was not good. The applicant’s partner notes in her supporting statement that she “… it is my genuine intention that I will consider returning to Sudan to live with him….”
[6] CB 798
[7] CB 801
In determining whether there was a real chance that the applicant would face serious harm if he returned to Sudan, the delegate considered country information including the religious makeup of Sudan and provisions of the Sudanese Criminal Act 1991 relating to sexual intercourse between adults outside lawful bond.
In its findings in relation to this aspect of the applicant’s claims, the delegate said:
While I have found that I do not accept the applicant would be the subject of criminal proceeding because of his actions in Australia, which may be considered contrary to Islamic norms, I have also considered whether the applicant would experience serious harm from members within the Islamic community because he has engaged in a long-term relationship with a Christian woman and has had two children out of wedlock with said woman and a child with a woman from a prior relationship. To that end, I am not persuaded that it is plausible that random members of the general community would become aware of the full extent of the applicant’s history in Australia unless the applicant were to divulge such information to such individuals, which would – in my view – be contrary to his best interests. In any event, I find that even if members of the community were to become aware of the applicant’s circumstances while he was living in Australia, given the prevalence of Islamic values and beliefs in the everyday life of the Sudanese, I accept that a portion of the community may look down upon the applicant’s actions as they may considered to be inconsistent or contrary with Islamic norms, however, I am not satisfied that such a reaction would amount to serious harm and result in protection obligations being owed to the applicant.
The applicant contends that these findings were concerned with historical matters and did not squarely deal with future risks associated with his partner’s potential travel to Sudan. The applicant contends that the delegate did not reject that the de facto wife would move to Sudan with the children if the applicant was returned. He also contends that the delegate made no adverse findings about his partner’s evidence.
APPLICATION FOR REVIEW OF THE DELEGATE’S DECISION
On 23 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision to refuse to grant him a protection visa.
On 24 December 2021, the Tribunal informed the applicant that it had “considered the material before [it] but… had been unable to make a favourable decision on [that] informational alone.” Pursuant to s 425(1) of the Act the applicant was invited to attend a hearing on 28 January 2022 so he could give evidence and present arguments related to the issues arising in relation to the decision under review.
The Tribunal informed the applicant that if he was proposing that a witness give evidence at the hearing, a witness statement setting out the witness’s evidence should be provided by 21 January 2023. The Tribunal otherwise requested that the applicant “provide all documents” on which he intended to rely by 25 January 2022.
On 23 and 24 January 2022, the applicant provided various documents in support of his application, including a copy of his partner’s statement of 20 September 2021. The applicant also provided a further statement dated 23 January 2022[8] in which he stated, relevantly:
[8] Supplementary Court Book (‘Supplementary CB’), p 1
[7]…Upon returning to Sudan I and my family will be practically homeless…
[86]My partner has also confirmed in her statement that for various personal and practical reasons she would risk returning with me to Sudan if I am deported. I would therefore not be able to hide the existence of my partner or my interracial children from people or the government in Sudan
[87]It will also be practically impossible to hide my partner’s existence or her nationality, which can easily be determined by authorities as soon we land in Sudan…
On 24 January 2022, the Tribunal issued a letter to the applicant’s representative notifying him of a new hearing date and time. The applicant was invited to complete and return a “Response to hearing invitation” form within 7 days of that letter.
On 27 January 2022 the applicant’s representative lodged a completed “Response to hearing invitation” form. In that form, the applicant confirmed that he relied on his partner’s statement in support of his application for review and also made a request for the Tribunal to take oral evidence from his partner[9]. The representative also provided additional country reports and statements from the applicant’s parents.
[9] CB 1162 – 1163
The hearing of the application for review commenced on 28 January 2022. The Tribunal hearing record for that day[10] reveals that the applicant, his solicitor and an interpreter were in attendance remotely via Microsoft teams. The contact details for the applicant’s partner were also recorded but she was not marked as being present. The hearing commenced at 2:17pm and concluded at 3:11pm, a total of 54 minutes. The hearing was then adjourned.
[10] CB 1262
The hearing resumed on 18 February 2022. On this occasion there was no record of the applicant’s partner being in attendance or available. The Tribunal hearing record for that day[11] reveals that the hearing commenced at 10:03am and concluded at 12:38pm, a period of more than 2 ½ hours (although it appears that proceedings were adjourned for a short period during that time).
[11] CB 1275
As the Tribunal’s reasons later recorded, the Tribunal refused to accede to the applicant’s request that it take oral evidence from his partner at the Tribunal hearing. At paragraph [114] of its reasons, the Tribunal member stated that the refusal was because the Tribunal “was satisfied that [the applicant’s partner] would give evidence consistent with her written statement”.
Tribunal’s reasons
On 31 October 2022 the Tribunal affirmed the delegate’s decision not to grant a protection visa.[12]
[12] CB 1284
At [27] of its reasons the Tribunal particularised the applicant’s claims for protection as set out in a “court book” which had been prepared and provided to the Tribunal by the applicant’s solicitors. Relevantly, those claims included that:
·The applicant fears harm in Sudan because of his membership of a particular social group, being a Muslim person who has 3 interracial children born out of wedlock to Christian partners.
·The applicant fears harm in Sudan because of his membership of a particular social group, being an apostate or betrayer of Islam for being intimate and fathering three children with Christian women without a lawful bond
At paragraphs [113]-[118] of its reasons the Tribunal addressed the applicant’s claimed fears of harm associated with being a Muslim person who has three interracial children born out of wedlock to Christian partners. The Tribunal relevantly found as follows:
Membership of a particular social group, being a Muslim person who has three interracial children born out of wedlock to Christian partner(s)
113. In the protection visa application form, the applicant indicated he was in a de facto relationship with [his partner], a 37-year-old female citizen of Australia. He identified that he has three children who were Australian citizens, two of which he had with [his partner]. The applicant identified that he was a Muslim.
114. [His partner] provided a statement dated 20 September 2021. In that statement, she suggested that she would move to Sudan to be with the applicant. The Tribunal observes that the applicant requested the Tribunal take oral evidence from [his partner] at the Tribunal hearing, but the Tribunal refused to accede to that request because the Tribunal was satisfied that [his partner] would give evidence consistent with her written statement.
115. The Tribunal accepts that a Muslim who has three interracial children born out of wedlock to Christian partners may constitute a particular social group.
116. The applicant provided the Tribunal with the English translation of the Sudanese Criminal Act of 1991. The applicant drew the Tribunal’s attention to s 145(1) of the Act, which makes it a criminal offence to have sexual intercourse with a woman ‘without a lawful bond.’ The applicant also directed the Tribunal to s 7 of that Act which also provides that ‘A Sudanese who has committed outside the Sudan an act which makes him a principal or joint offender to an offence falling under the provisions of this Act shall be punished when he returns to the Sudan if the act constitutes an offence and also, under the law of the State where the Act is done, unless it is proved that such a Sudanese was tried outside the Sudan before a competent court and has served his sentence, or has been found not guilty by such a court.’
117. Concerning the enforcement of the criminal law, the Tribunal is not satisfied that the applicant would be punished for his past conduct in Australia by having three children out of wedlock. This is because this conduct is not a criminal offence in Australia, which appears to be a prerequisite to enliven the prosecution in Sudan of offences committed outside Australia. The Tribunal is not persuaded by the applicant’s argument that ‘Sudan is a very corrupt country and security forces are a law onto themselves’ which would mean that he would be prosecuted despite the limitation provided in that Act.
118. Concerning future conduct, the Tribunal accepts that if the applicant’s Australian de facto partner was to relocate to Sudan with her two children, they would likely continue in their relationship, including sexual relations without being married. However, despite what the applicant’s de facto partner asserts in her written statement that her genuine intention is to considering return to Sudan with the applicant, the Tribunal does not accept that this will occur. As made clear from [the partner’s] written statement, she has a host of medical conditions, including diabetes, sciatica nerve pain, ovarian cysts, endometriosis, adenomyosis, Achilles’ tendinitis and bursitis. She wrote about that she was really concerned that services or quality of services to address her medical conditions in Sudan will not either be affordable or available. She also wrote that ‘unlike Australia, she would have no support network or anyone that she knew in Sudan. The Tribunal is satisfied that Ms Willis and the two children she shares with the applicant will not travel to Sudan with the applicant, and therefore, there is no risk that the applicant would be prosecuted in Sudan for having sexual intercourse with his de facto to whom he is unmarried, because she will not be in Sudan.
119. In the event that a person who has had children out of wedlock to Christian women are not a particular social group, the Tribunal has considered whether the applicant would face a real risk of significant harm with this profile upon his return to Sudan. The Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life, or subject to the death penalty in Sudan because he has previously had sexual relations with two women in Australia that resulted in the production of three children. The Tribunal is also not satisfied that the applicant will be tortured, or subject to any cruel inhuman treatment or punishment, or degrading treatment or punishment in Sudan because of these relationships.
Elsewhere in the reasons the Tribunal found that the applicant’s other protection claims were not made out. The Tribunal was not persuaded that the applicant was a credible witness for the reasons set out at [43]-[59]. The Tribunal was not satisfied and did not accept that the applicant was at risk of harm due to his membership of the Nuba tribe or because of any imputed anti‑government political opinion associated with his ethnicity or association with opposition groups[13]. Similarly, the Tribunal did not accept that the applicant faced a real chance of serious harm due to any membership of or association with the Dinka tribe[14]. The Tribunal was not satisfied that the applicant would be unable to access treatment to address his mental health problems[15] or that he would face a real chance of serious harm due to his alcohol or drug addiction[16] or potential homelessness. The tribunal also rejected the applicant’s claims for protection based on him being an apostate or betrayer of Islam[17], a failed asylum seeker[18] or because of the general security situation in Sudan including corruption and lack of basic services[19].
[13] Tribunal’s Reasons [60]-[71]
[14] Tribunal’s Reasons [72]-[79]
[15] Tribunal’s Reasons [80]-[94]
[16] Tribunal’s Reasons [95]-[105]
[17] Tribunal’s Reasons [120]-[128]
[18] Tribunal’s Reasons [129]-[134]
[19] Tribunal’s Reasons [135]-[138]
The Tribunal stated that it had considered the applicant’s claims both individually and cumulatively[20] in reaching its finding that the applicant is not a person in respect of whom Australia has refugee protection obligations under s 36(2)(a)[21] or complementary protection obligations under s 36(2)(aa)[22].
[20] Tribunal’s Reasons [30]
[21] Tribunal’s Reasons [140]
[22] Tribunal’s Reasons [142]
APPLICATION FOR JUDICIAL REVIEW
By an amended application (the filing of which was not opposed by the Minister), the applicant identifies and particularises a single ground of review which is expressed in the following terms:
The Second Respondent (‘Tribunal’) fell into jurisdictional error by breaching s 425 of the Migration Act 1958 (Cth) or, alternatively, failing to accord the Applicant procedural fairness at general law before making its decision
Particulars
(a)The Applicant put forward a case to the delegate of the Second Respondent, and later to the Tribunal on review, that if he was deported to Sudan, he would face persecution for his membership of a particular social group, being a Muslim person who has 3 interracial children born out of wedlock to Christian partner(s).
(b)In support of his claim, the Applicant adduced evidence from his current Christian partner, the mother of his two children, in the form of a written statement in which she said inter-alia that:
(i)If the Applicant was to be deported by Australian government, it was her “genuine intention that [she] will consider returning to Sudan with him”;
(ii)She and her partner had “spoken about this for some time now and it may not be possible due to financial and practical difficulties for [her] and [her] kids to regularly visit” the applicant “on [a] temporary basis in Sudan, and so “the only solution is just to move [to Sudan];
(iii)she was “struggling with caring alone for [her] children and [they were] as a family facing insurmountable financial, emotional and practical hardships at[the time];
(iv)she and her children would “continue to face insurmountable hardships and given [her] medical issues, [she did not] how long [she could] function and look after [her] kids alone.
(c)The delegate rejected the Applicants application, but did not reject the partner’s evidence concerning her prospective return to Sudan with the children. The applicant was therefore entitled to assume, unless otherwise notified, that would not be an issue arising on review before the Tribunal.
(d)Prior to making its decision, the Tribunal did not alert the Applicant to any concerns it had about the partner’s evidence.
(e)Prior to the hearing before the Tribunal, the applicant requested that the Tribunal take oral evidence from the Applicant’s current partner. The Tribunal refused to accede to the Applicant’s request because the Tribunal was satisfied that the Applicant’s partner would give evidence consistent with her statement: [114].
(f)Despite those circumstances, the Tribunal nevertheless found that the Applicant’s partner and the two children would “not travel to Sudan with the applicant, and therefore, there is no risk that the applicant would be prosecuted in Sudan to having sexual intercourse with his de facto to whom he is unmarried, because she will not be in Sudan: [118].
(g)The error was material.
RELEVANT PRINCIPLES
In substance, the applicant contends that the Tribunal fell into jurisdictional error by failing to put him on notice that it could reject his partner’s evidence and conclude that she and the children would not return to Sudan with him. The applicant frames this error as a breach of s 425 of the Act and/or as a failure by the Tribunal to comply with its residual procedural fairness obligations and general law.
Section 422B(1) of the Act provides that Div 4 of Pt 7 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.
Pursuant to s 425(1) of the Act the Tribunal has a statutory obligation to invite an applicant to appear before it unless the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it or the applicant consents to the Tribunal deciding the review without an appearance.
Where, as here, an invitation is issued to an applicant, the applicant must be provided with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review[23]. The invitation and opportunity to appear before the Tribunal to give evidence and present argument should be meaningful and any hearing must be conducted in a manner that is fair in substance not merely in form[24].
[23] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
[24] s 422B(3), e.g. Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [75]-[76] per Perram J
The statement in s 422B(1) that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”. There is, therefore, scope for the operation of the natural justice hearing rule in relation to matters that are not dealt with[25].
[25] see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [57]- [59] per French J (as his Honour then was); Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512 at [48] per Rares, Robertson and Farrell JJ
Not only is a Tribunal required to invite an applicant to a hearing, it must also raise with the applicant the issues relating to the decision under review. An applicant should be put on notice of any “live issue” which might be determinative against him.
The “issues arising in relation to the decision under review” are to be identified by the Tribunal. Ordinarily, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”[26].
[26] SZBEL at [33]-[35] (Gleeson CJ, Kirby, Hayne, Callinan and Heyden JJ); Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 at [62] (Emmett, Kenny and Jacobson JJ)
In order to establish jurisdictional error it is necessary to identify the dispositive or determinative issues on which the decision to reject the applicant’s claim was based.
Generally, in identifying the issues arising in relation to the decision under review, an applicant is entitled to have his mind directed to the critical issues or factors on which the decision is likely to turn. This affords the applicant an opportunity to deal with those issues and to respond to any adverse conclusions drawn on the material supplied which is not an obvious and natural evaluation of that material[27].
[27] SZLPH v Minister for Immigration and Border Protection [2018] 266FCR 105 at 115
If the Tribunal invites an applicant to appear and says nothing about a matter on the basis of which the Tribunal decides against the applicant, then it would not have complied with s 425 and the applicant would not have been accorded procedural fairness[28].
[28] SZBEL at [37]
However, the “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves. The Tribunal is not required to descend into all the underlying factual matters of each issue when meeting its obligations under s 425.
Procedural fairness does not require a Tribunal to provide “a running commentary upon what it thinks about the evidence that is given”[29] or to disclose that it might not accept certain evidence. Nor does a Tribunal have an obligation to record everything it did in conducting a review. The Court should not lightly infer, merely from the absence of express mention, that a Tribunal did or omitted to do some act in the course of its review[30] or that it failed to comply with s 425(1)[31].
[29] SZBEL at [48]; Minister for Immigration and Citizenship v Applicant A125 [2007] FCAFC 162 at [88]-[89]
[30] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [69]-[70]
[31] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]
The applicant bears the onus of proving jurisdictional error[32].
[32] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [39]
Applicant’s submissions
At the hearing before me on 24 April 2023 the applicant was represented by Mr Fitzgerald of counsel. Counsel relied upon an outline of submissions filed on 13 April 2023 and developed those submissions orally.
In substance, the applicant contends that the Tribunal in this case fell into the same kind of error as was found to be judicial error by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).
In SZBEL the applicant was employed as a seaman on a ship of the Islamic Republic of Iran. The applicant jumped ship and applied for a protection visa in Australia. In his statutory declaration in support of his protection visa, the applicant described the way he jumped ship and stated that he feared for his safety because the captain of his ship knew of his interest in the Christian religion. A delegate of the Minister refused the visa after considering the nature and extent of the applicant’s Christian commitment. The Tribunal later affirmed the delegate’s decision after not accepting certain events to which the applicant had deposed in his statutory declaration.
The Tribunal in SZBEL considered those events to be “implausible”, including the applicant’s account of how the ship’s captain came to know of his interest in Christianity. However, the delegate had not specifically dealt with the “plausibility” of these events, nor had the delegate based his decision on these events. There was nothing in the delegate’s decision to indicate that these aspects of the applicant’s evidence were in issue and the Tribunal did not discuss these issues with the applicant at its hearing or challenge or say anything to the applicant which revealed that the plausibility of his account was a live issue. Moreover, the Tribunal did not raise these issues with the applicant in writing or in any other way prior to or during the hearing.
In SZBEL the High Court found that the applicant had been denied procedural fairness, in that by failing to give him sufficient opportunity to give evidence, or to make submissions, about the determinative issues arising in relation to the decision under review the Tribunal had not complied with s 425 of the Act.
In the instant case, the applicant similarly contends that the decision of the delegate and the failure of the Tribunal to identify critical issues arising in relation to the delegate’s decision reveals a breach of s 425 and a denial of procedural fairness.
The applicant points to the fact that in his application for a protection visa he identified a partner with whom he had been in a relationship for approximately 10 years and with whom he had fathered two children. Following his protection visa interview, the delegate had specifically asked for certain further information regarding the applicant’s relationship with his partner. He was also asked to provide a statutory declaration from his partner which addressed certain issues including whether she was supportive of the applicant and intended to remain part of his life if he was to return to Sudan and whether she intended to travel to Sudan with her children on a temporary basis to visit the applicant.
In response to the delegate’s request the applicant provided a statement and other material. In his statement dated 23 August 2022 the applicant expressed concerns arising from him being a Muslim person who has three children born out of wedlock to Christian partners and his fear of harm if he were to return to Sudan. Among other things, in that statement the applicant asserted that his partner and children would regularly visit him if he was sent back to Sudan and therefore he would not be able to hide the existence of his partner or his children from the people or the government[33].
[33] CB 738
The applicant also provided a statement from his partner dated 20 September 2022, in which she confirmed that she was in a de facto relationship with the applicant and that she shares two children with him who are both citizens of Australia by birth. At paragraph 19 of the statement the partner describes her own position in relation to the applicant’s possible return to Sudan, saying, inter alia:
If, hopefully that never happens… a decision was made by the Australian government to deport [the applicant] to Sudan, is my genuine intention that I will consider returning to Sudan with him…
The applicant’s partner also stated that she had been speaking to him for some time about the possibility that he might return to Sudan, and that:
…it may not be possible due to financial and practical difficulties for me and the kids to regularly visit [the applicant] on a temporary basis in Sudan. So the only solution is to just move their [sic] and jeopardise our lives because we have no other option
In her statement of 20 September 2022 the applicant’s partner also describes particular health issues she currently faces and the particular difficulties she will encounter if she does return to Sudan. She expresses concern that the medical services she requires or the quality of services may not be available in Sudan. The partner also stated that she and the applicant had an intention to have at least two more children the future, but it might not be affordable for that to occur in Sudan.
The applicant contends that the body of relevant material before the delegate, including the statements of the applicant and his partner, constituted clear evidence of the partner’s intention to move to Sudan with her two children in the event the applicant was to return.
Although the delegate refused the application for a protection visa, the delegate did accept that the applicant identified as Muslim, that he and his partner were in a de facto relationship and that he had three children out of wedlock, two of which were with his current partner. In relation to the relationship between the applicant and his partner, the delegate noted:
“At interview the applicant was asked whether he would be returning to Sudan with his partner and their 2 children. He stated that his partner had told him that she would visit him on a temporary basis but that she would not stay permanently because the situation in Sudan was not good. The applicant’s partner notes in her supporting statement that she “… it is my genuine intention that I will consider returning to Sudan with him”[34].
[34] CB 801
Against that background, the applicant submits that the delegate’s reasons, when read fairly, do not reveal any adverse findings about the credibility of the partner’s evidence or any rejection of her evidence regarding her intention to move to Sudan with the children if the applicant was to return. Although the delegate was ultimately not satisfied of his claimed fears, the applicant submits that the delegate did not reject his partner’s evidence concerning her intention to travel to Sudan with the children, either temporarily or permanently. Moreover, the applicant submits that the delegate did not find that the partner would not return to Sudan with the applicant and their children.
It is submitted that there was nothing in the delegate’s reasons which could have caused the applicant to suspect or be on notice that the veracity of the partner’s evidence was an issue.
When the applicant was invited by the Tribunal to attend a hearing he was asked to provide a witness statement from any person he proposed would give evidence at the hearing and all other documents on which he intended to rely. The applicant provided various documents in support of his application, including his partner’s statement of 20 September 2021 and his own further statement dated 23 January 2022. In his January 2022 statement, the applicant reiterated that his partner had confirmed in her statement that for various personal and practical reasons she would risk returning to Sudan with him if he was deported[35]. The applicant also points to the “Response to hearing invitation” form in which the applicant again confirmed that he relied on his partner’s statement in support of his application for review and also made a request for the member to take oral evidence from his partner. However, as the Tribunal’s reasons later recorded[36], the Tribunal refused the applicant’s request to take evidence from his partner at the hearing, the Tribunal being satisfied that the partner would give evidence consistent with her written statement.
[35] SCB 12
[36] Tribunal reasons at [114]
The applicant submits that it is clear from [118] of its reasons that the Tribunal expressly rejected the partner’s evidence about she and the children returning with the applicant to Sudan. The applicant contends that the Tribunal proceeded to make positive findings to the opposite conclusion, namely that the partner and children would not go to Sudan with the applicant either temporarily or permanently. The applicant submits that the Tribunal did not make any findings in the alternative on the assumption that the partner and children might return to Sudan with the applicant in future (either temporarily or permanently). The applicant submits that the Tribunal found the very opposite to what the de facto partner had said she would do and effectively found her to be lacking in credit. In doing so, it is submitted that the Tribunal unambiguously rejected evidence which had not been the subject of doubt or criticism by the delegate.
The applicant submits that the Tribunal’s finding that his partner and her children would not travel to Sudan with the applicant was not an “obvious and natural conclusion” on the material as it was contrary to the evidence of the applicant, his partner and his parents. The applicant submits that the Tribunal fell into error by not notifying him that the veracity of his partner’s evidence concerning her intention to return was an issue arising under the application for review[37]. It is submitted that absent any notification from the Tribunal that the veracity of the partner’s evidence was in issue, the Tribunal created the strong impression[38] and the applicant was entitled to assume[39] that the veracity of the partner’s evidence was not a matter he would need to address.
[37] s 425(1)
[38] Applicant’s outline of submissions at [33]
[39] see SZMOK at [63]; SZBEL at [35]-[36]
Notwithstanding the transcript of the hearing is not in evidence, the applicant contends that the Court can comfortably conclude that the applicant was not put on notice about this “issue” at the Tribunal hearing. The applicant submits that when the Tribunal reasons are read as a whole it can readily be seen that in relation to other claims for protection there is a more forensic analysis of particular parts of the applicant’s evidence. At various points in its reasons the Tribunal records questions raised with the applicant and his responses[40]. However, in relation to the de facto partner’s evidence about her intentions, it is submitted that the Tribunal’s approach was quite different. In relation to that issue the Tribunal noted the partner’s written statement of 20 September 2022, accepted that the partner would give the same evidence that she had given in her statement and for that reason determined that it did not need to hear anything further from her. It is submitted that based on the interactions recorded elsewhere in its decision[41] about other issues, the Court can infer the veracity of the partner’s evidence was not raised as an issue by the Tribunal and was not the subject of questions or submissions.
[40] Tribunal reasons at [54], [56], [69] and [77]
[41] see e.g. EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 at [46] per Moshinsky J
In reply, counsel for the applicant added that in order to draw such an inference the Court is not limited only to the Tribunal reasons. The applicant said that regard could also be had to the content of the invitation to hearing form and the absence of any formal invitation from the Tribunal to comment on the specific issue.
In light of all the circumstances described above, the applicant submits that the Tribunal fell into error by rejecting relevant parts of his partner’s evidence without first affording him an opportunity to address the issue. It is submitted that the partner’s expressed intention to travel to Sudan should have been, but was not, raised with the applicant. It is submitted that it was an issue that was ultimately dispositive of an important element of his claim for protection. By reason of its failure to put the applicant on notice about the issue, it is submitted that the Tribunal failed to comply with its obligations under s 425 or, alternatively, with the residual elements of procedural fairness it owed to the applicant at general law.
The applicant submits that the Tribunal’s failure was material, and therefore jurisdictional, because it deprived the applicant of a realistic possibility of a different outcome[42].
[42] Nathanson v Minister for Home Affairs [2022] HCA 26 at [1], [45].
Minister’s submissions
The Minister raised three points in response to the application.
First, the Minister’s counsel reminded the Court that the applicant carries the overall onus of proving jurisdictional error.
The Minister submits that the applicant’s submissions are premised on an assumption that the Tribunal did not put a relevant “live” issue to the applicant. However, insofar as that assumption is based on the absence of any express reference to the Tribunal doing so in its written statement of reasons, it is submitted that the assumption must be rejected for the following reasons.
There were two hearings before the Tribunal. In total those hearings went for approximately 3 hours. The Minister submits that in the absence of transcript or other contemporaneous record the applicant cannot rely on the Tribunal’s reasons as an accurate and complete record of what took place during the hearing, including whether issues were or were not raised or whether the Tribunal complied with its obligations under section 425 of the Act.
As to whether an inference can be drawn from the reasons that the Tribunal failed to put the applicant on notice that it might not accept the evidence of his partner, the Minister submits that the task should be approached in accordance with settled principle. That requires the Tribunal’s statement of reasons to be read fairly and not in an unduly critical manner and that the statement of reasons be read in light of the content of the statutory obligation pursuant to which it was prepared[43].
[43] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38]-[40]
The Minister submits that the Tribunal’s reasons must record its material findings of fact and the evidence upon which those findings are based, but the Tribunal is not required to give a full and comprehensive account of the hearing or set out how it complied with its various procedural obligations. The reasons must be read accordingly.
In Minister for Immigration and Citizenship v SZGUR[44] the High Court rejected a finding in the court below that an inference could be drawn that the Tribunal had not considered a matter (being the visa applicant’s request for a medical examination) on the basis that there was no indication that it did so in its written statement of reasons. Gummow J held at [69] that this was an incorrect approach to a proceeding for judicial review. Rather:
“… para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former . The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on review”….”
[44] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [68]-[69]
The Minister submits, as Gummow J held in SZGUR at [70], that an inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, is not an inference which should be drawn lightly.
The Minister also rejects the applicant’s submission that such an inference can be drawn from the fact that the Tribunal’s reasons disclose more active discourse in relation to certain topics and claims than others. The premise for such an inference must be well‑founded. The Minister again submits that in the absence of transcript or other evidence about what actually occurred at the hearing, there is no sufficient evidential basis on which the applicant can establish that the Tribunal did not comply with the rules of natural justice[45].
[45] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]
The Minister’s second substantive submission is that the applicant’s case is in any event built upon a false premise. It is submitted that when the delegate’s reasons are read fairly and as a whole the delegate did not make a positive finding that the applicant’s partner would return to Sudan with him or that the veracity of her evidence was unquestioned. Accordingly, the Minister submits that the applicant was never “entitled to assume” that his partner’s evidence had been accepted by the delegate.
The delegate’s reasons show that the delegate did accept the evidence of the applicant’s partner that she had been in a serious relationship with the applicant and that they have two children of mixed race. The delegate expressed some concern about the nature of the relationship between the applicant and his partner, but giving the applicant the benefit of the doubt ultimately accepted that they remain in a de facto relationship[46].
[46] CB 793
However, the Minister submits that on a fair reading the delegate then went on to implicitly reject the notion that the applicant’s partner would go to Sudan with her children if the applicant was deported.
The Minister relies upon the extract of the delegate’s decision referred to at [15] of these reasons as evidence of the delegate’s rejection of the partner’s evidence that it was her “genuine intention” to “consider returning to Sudan” with the applicant. It will be recalled that in that paragraph the delegate found that the applicant would not experience serious harm from members within the Islamic community because he had engaged in a long-term relationship with a Christian woman and had two children out of wedlock with said woman and a child with a woman from a prior relationship.
The Minister submits that the unstated premise of that whole paragraph is that the delegate must have rejected the partner’s evidence that she would travel to Sudan with the applicant. It is submitted that the delegate’s finding that the applicant’s relationship with a Christian woman would only become known in Sudan if the applicant told others about it, necessarily involved a finding that the applicant’s partner and children would be not present with him in Sudan - because the presence of the partner and children in Sudan would otherwise reveal the nature of their relationship.
Having regard to the delegate’s findings and the implied rejection of the partner’s evidence, the Minister submits that the applicant was thereby on notice that the his partner’s evidence on the matter was in issue. Accordingly, the applicant was not entitled to assume that the evidence had been accepted.
Thirdly, the Minister submits that the “veracity of the partner’s evidence” is a distraction as it was not an “issue arising” in relation to the review at all. Rather, on the Minister’s submission, the specific determinative issue in the Tribunal’s review was whether the applicant’s partner and her children would or would not relocate with the applicant should he be ordered to return to Sudan. A finding on that factual issue was the necessary incident to the applicant’s claim for protection, not whether the partner’s evidence would be accepted.
The Minister submits that the critical dispositive issue was addressed by the applicant in his statement to the Tribunal. The Tribunal also had regard to the statement of the applicant’s partner on that issue, as is self-evident from the reasons at [114] where the Tribunal found that any oral evidence from the partner would likely only confirm her written statement. The Minister submits that the Tribunal was not required to put the applicant on issue that it might not or would not accept that evidence, nor was the Tribunal obliged to raise concerns with the applicant as to the credibility of evidence[47], as to do so would likely run a serious risk of conveying an impression of prejudgement[48].
[47]CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 524-525; DSW v Minister for Immigration and Border Protection [2020] FCA 107 at [13] per Snaden J
[48] SZBEL at [48]
CONSIDERATION
The onus rests with the applicant to establish that the decision of the Tribunal is affected by jurisdictional error. In my view the applicant has not done so.
Having considered the written and oral submissions of the parties and the evidence and authorities to which I have been directed, the central issues in this application for review appear to be:
(a)whether the delegate made any findings which, in the absence of specific identification by the Tribunal, entitled the applicant to assume were not live “issues arising in relation to the decision under review”;
(b)whether the veracity of the partner’s evidence in relation to possible relocation to Sudan was an issue arising in relation to the review, in light of the delegate’s findings;
(c)if so, whether that issue was identified by the Tribunal; and
(d)whether the applicant was afforded a fair opportunity to deal with that issue and to respond to any adverse conclusions which might be drawn by the Tribunal which was not an obvious and natural evaluation of that material.
The relevant claim for protection in this application was the applicant’s fear of harm in Sudan because of his membership of a particular social group, being a Muslim person who has three interracial children born out of wedlock to Christian partners. It can be accepted that a relevant anterior issue to determining that claim was the factual question of whether the applicant’s de facto partner and her two children would relocate to Sudan to be with the applicant if he were to return, it being assumed that if she did so they would continue in their relationship and engage in sexual relations without being married. It is the factual finding on that anterior question which stands to be determinative or dispositive of the relevant claim for protection.
The delegate did not accept the partner’s evidence or find that she would move to Sudan
On my assessment of the delegate’s reasons, the applicant’s ground of judicial review is built on the flawed premises that (1) the delegate accepted the de facto partner’s evidence or (2) at least did not reject evidence and (3) made a finding that she and her children would relocate to Sudan. The delegate’s reasons, properly understood, do not in my view establish that premise and did not give rise to an entitlement on the part of the applicant to assume that the partner’s evidence was accepted unless otherwise indicated. In my view, the applicant mischaracterises the delegate’s finding.
The applicant’s evidence to the delegate in response to a question asked of him was that he had been told by his partner that she would visit him on a temporary basis but that she would not stay permanently because the situation in Sudan was not good. The partner’s evidence in her statement was that it was her “genuine intention to consider returning to Sudan” although that statement must be read in the context of her other evidence including the series of reasons which weighed against a decision to actually do so, including that
(i)she had a host of serious medical conditions, including diabetes, sciatica nerve pain, ovarian cysts, endometriosis, adenomyosis, achilles tendonitis and bursitis;
(ii)she was really concerned that services or quality of services to address those medical conditions in Sudan would not be affordable or available; and
(iii)unlike in Australia, she would have no support network or anyone that she knew in Sudan.
While there is no evidence that the delegate expressly rejected the partner’s evidence or credit, there is some merit in the Minister’s submission that read fairly the delegate’s decision implies a finding that the applicant’s partner would not relocate to Sudan. The delegate’s finding that the applicant’s de facto relationship would not become known in Sudan unless he disclosed it to others, weighs in favour of an implication that the delegate considered the applicant would return alone. Indeed the unstated premise for the delegate’s analysis of the applicant’s other protection claims (e.g. his fear of persecution as a western returnee and his capacity to subsist) is that he would return alone.
The delegate plainly did not accept the applicant’s claim for protection based on his fear of persecution arising from his de facto relationship with an Australian woman or his fathering of two mixed race children out of wedlock. There is nothing in the delegate’s decision which points to an acceptance of the partner’s evidence or a finding that she and her children would relocate to Sudan. Accordingly, I do not accept the applicant’s submission that he was entitled to assume such a finding or that his partner’s evidence on that question had been accepted.
The veracity of the partner’s statement was not an issue in and of itself
Turning then to the “issues arising” from the delegate’s decision in respect of which the applicant was entitled to be on notice pursuant to s 425.
There is merit in the Minister’s submission that the possibility the Tribunal “would reject the partner’s evidence and positively conclude that she and the children would never return to Sudan with the applicant” was not an issue arising in relation to the review. The relevant issue on review, and that which would be determinative of the relevant claim for protection, was whether the applicant’s partner and children would in fact relocate to Sudan with the applicant if he was to return.
In my view, the relevant issue in relation to which the applicant was entitled to be on notice and in respect of which he was to be afforded the opportunity to present evidence and make submissions was the factual question of whether the applicant’s partner and children would relocate. The issue was not whether the Tribunal might reject the partner’s evidence on that matter. This fine distinction might be seen to be an exercise in splitting hairs, but it is a distinction of substance.
Further, and in any event, the applicant’s articulation of the “issue” is misplaced because, as I described above, it is based on the flawed premise that the delegate accepted the partner’s evidence or made findings that she and the children would not return. No such findings were made and the applicant was not entitled to assume that the veracity of his partner’s evidence was no longer live.
The relevant “issue” is whether or not the applicant’s partner and her children would travel to Sudan. In respect of that issue the applicant was on notice because he sought to address it. The applicant addressed it in his statement to the Tribunal of 23 January 2022. It was an issue in respect of which he sought to rely on evidence, including his earlier statement of 23 August 2021 and his partner’s statement of 20 September 2021. It is an issue he sought to address in his submissions to the Tribunal and an issue in respect of which he requested to adduce further oral evidence from his partner (albeit that request was unsuccessful).
Whether the Tribunal might reject the applicant’s partner’s evidence and make a finding at odds with that evidence was not an issue in and of itself. I accept the Minister’s submission that the Tribunal was not required to raise as a discrete issue the possibility that it might not accept the partner’s evidence on the dispositive point. It is a matter for the Tribunal to weigh that evidence and it is not required to give a running commentary about the credibility of evidence or its internal mental processes.
I do not accept the applicant’s submission that the Tribunal created the strong impression that the issue of the partner’s intention to return with the children to Sudan would not be an issue the applicant would need to address before the Tribunal[49]. In my view the applicant had no proper basis to assume that his de facto partner’s evidence would not be evaluated by the Tribunal in determining the relevant claim for protection and there was no specific entitlement to be put on notice of the finding that would be reached in relation to that evidence.
[49] Applicant’s outline of submissions at [33]
Relevant onus to establish error has not been discharged
Finally, I am not in any event satisfied to the requisite degree that the applicant has proven that the Tribunal actually failed to comply with any obligation to put the applicant on notice of “the issue”, howsoever that issue is described.
As the Full Court observed in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21], an allegation that an applicant before the Tribunal was denied procedural fairness cannot usually succeed in the absence of evidence[50].
[50] See also Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393 at [12]
There is no transcript in evidence before the Court or other record of what transpired during the hearing. There is evidence before the Court that the Tribunal conducted approximately 3 hours of review hearing over 2 hearing days, but there is little to inform the Court as to what actually occurred during the hearings. There is evidence of correspondence between the Tribunal and the applicant’s representative prior to the hearing, including the invitation to attend and voluminous documentation, statements and submissions which were filed in the form of a Tribunal court book. There is evidence of the applicant’s particularisation of his protection claims including, notably, his claim to fear harm in Sudan as the Muslim father to three interracial children born out of wedlock to Christian partners. There is evidence that the applicant’s partner may have attended one of the hearings and was at least available to give evidence if the Tribunal acceded to the applicant’s request. There is of course the Tribunal’s statement of decision and reasons dated 31 October 2022.
In terms of the relevant protection claim, the statement of reasons reveals that the partner’s statement of 20 September 2021 was before the Tribunal and that the substance of that statement was understood. The Tribunal recorded the applicant’s request for the Tribunal to take oral evidence from the de facto partner at the hearing and recorded its reasons for not acceding to that request. The Tribunal discloses its consideration of various anterior questions relevant to the protection claim (e.g. the operation of the Sudanese Criminal Act), including future conduct. In respect of the de facto partner’s assertion that that her “genuine intention is to consider returning to Sudan with the applicant”, the Tribunal did not accept that would eventuate and gave its reasons for so finding. The Tribunal’s finding in relation to this question at [118] reveals a clear understanding of the partner’s evidence and a finding having taken that evidence into account.
Contrary to the applicant’s submission, the Tribunal’s finding was not a complete rejection of the partner’s evidence - rather it was a finding that her expression of intent would not materialise in fact. It is an unremarkable finding and one clearly open to the Tribunal on the evidence.
As set out earlier in this judgement, the applicant urges the Court to draw inferences from the Tribunal’s reasons, including that the applicant was not put on notice that his partner’s evidence might not be accepted or that the Tribunal might make a finding which was contrary to that evidence.
In my view, a fair reading of the Tribunal’s reasons in light of the statutory obligations pursuant to which they were prepared, does not give rise to the inferences contended for by the applicant. Having regard to the authorities cited earlier in this judgement, in particular SZGUR and NAOA, the Court should not lightly draw an inference that the Tribunal did or omitted to do some act in the course of its review where there is no obligation to record that matter. The Tribunal did not have an obligation to record everything it did in conducting its review and it is self-evident that the statement of reasons is not a comprehensive record of the discourse which occurred over three hours of hearing. The Tribunal was not required to record its procedural decisions, its internal consideration of evidence and credit or to provide a running commentary about how it is thinking and about what issue. In my view there is no basis to infer that the Tribunal did in fact fail to comply with s 425
I note the applicant’s submission, based on EIC20, that a reading of the Tribunal’s reasons reveals that there might have been more detailed discourse in the hearing about some issues and claims than others. However, it is unremarkable and unsurprising that the Tribunal devotes more of its reasons, for example, to issues relating to the applicant’s credit than it does to other evidence. The Court can easily be led into error by trying to reconstruct the course of a Tribunal hearing by forensically analysing how the Tribunal has chosen to deal with various issues. There may be (and usually will be) very good reasons why the Tribunal might take a deeper dive into some matters and not others.
The determinative issue, namely whether the applicant’s partner and children would relocate to Sudan, was an issue arising from the delegate’s decision in relation to which the applicant was entitled to give evidence and make submissions. I am satisfied this issue would have been apparent to the applicant and his representative. As discussed, this was a matter about which evidence and submissions were put before the Tribunal. However, the applicant had no proper basis to assume that his partner’s evidence had been accepted or a statutory right to be put on notice that it might not be.
DISPOSITION
For the reasons set out above the Tribunal did not fall into jurisdictional error by failing to comply with s 425 of the Act. Nor did the Tribunal fail to comply with its residual procedural fairness obligations at general law.
It follows that the application must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 18 May 2023
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