EBA18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 969
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBA18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 969
File number(s): MLG 2324 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 2 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming decision not to grant a visa - extension of time application – whether explanation for the length of delay was adequate – whether the interpretation of the Tribunal proceedings was adequate – whether the applicants were afforded procedural fairness - adverse credibility findings – no arguable case of jurisdictional error - application for extension of time dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 424A, 425, 476, 477 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 398; [2003] HCA 26
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SZBYR v Minister and Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26
SZOER v Minister for Immigration and Citizenship [2010] FCA 1100
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142
SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 26 August 2024 Date of hearing: 26 August 2024 Place: Melbourne The Applicants: In person Counsel for the First Respondent: Mr M. Daly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2324 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBA18
First Applicant
EBB18
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The amended application for judicial review filed by the applicants on 4 September 2018 is amended pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) so as to seek an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) in which to file the application for judicial review.
2.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with the need for the amended application referred to in Order 1 above to be physically made, filed or served.
3.The first respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.
4.The application for an order pursuant to s 477(2) of the Act is dismissed.
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 CUTHBERTSON
INTRODUCTION
On 7 August 2018, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (the Act) for judicial review of a decision of the second respondent (the Tribunal) made on 25 May 2018 (JR application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicants protection visas (visa) under s 65 of the of the Act (Tribunal’s decision).
The JR application was filed out of time. Section 477(1) of the Act provides that an application to this Court for a remedy pursuant to s 476 must be made within 35 days of the date of the migration decision. The date of the migration decision in this matter is 25 May 2018: see s 477(3)(c) and 430(2) of the Act. In this case, the applicants filed their application 73 days after the relevant date. By an amended application dated 4 September 2018 and further amended on during the hearing on 26 August 2024, the applicants have sought an extension of time in which to file their substantive application (EOT application). The Minister opposes the application.
This judgment is only concerned with the EOT application. For the reasons set out below, the EOT application is dismissed.
BACKGROUND
The applicants are husband and wife. They are both citizens of Malaysia. They first arrived in Australia on 13 March 2016. By applications dated 9 August 2016 and received by the Department on 11 August 2016, the applicants applied for Protection (Class XA) (Subclass 866) visas (Court Book (CB) 1-72).
The first applicant’s claim for protection set out in his visa application was to the effect that he had left Malaysia because he had “an enormous debt to loan shark”. He claimed he had been “tricked” and that he could not afford to pay the interest because it was big. He stated he had to “work all day only to pay the interest”. He claimed that in 2015 he had problems paying “so the debt collector start came to my house, yell and scream, and finally hit and kick me”. He “decided to run to Australia before the situation [got] worse”. He stated in his application that if he returned to Malaysia, he thought “they will find me and force me to work all my life only to pay the interest, otherwise they will kill me”. He explained he did not try to seek help in Malaysia because he was afraid they would “hit me even more”. He stated he did not relocate within Malaysia because he did not “have much money left”. He stated that the authorities in Malaysia could not or would not protect him because “[t]he loan shark have legal organization so they must…have backup from the Government” (CB 32-34).
The second applicant’s claim derives from that of her husband. She stated that she was following her husband who was being “chased by loan shark”. She explained that if they returned to Malaysia they would “be forced to pay enormous interest otherwise” her husband would be killed. She described being scared. She also stated that she did not think the Malaysian authorities would protect her if she returned, stating that “we will go straight to jail because the loan shark have proper legal aid” (CB 57-59).
On 3 October 2016, a delegate of the Minister (the delegate) refused to grant the applicants visas (CB 87-104) (delegate’s decision). The applicants were notified of the decision by letter the following day (CB 83-86).
On 22 October 2016, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 105-106). On 26 October 2016, the Tribunal wrote to the applicants acknowledging receipt of their review application. The letter advised that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 108-109). The letter also enclosed a document titled "Information for refugee review applicants – MR Division” (CB 110-112). That document relevantly included the following information:
In conducting a review, we must consider the case afresh and make a decision that is correct in law. We have the power to overturn decisions and to substitute another decision, or return a case to the department for reconsideration with directions. We are required to provide a review that is accessible, fair, just, economical, informal, quick and proportionate.
Visa criteria and matters relating to the cancellation of visas are contained in the Migration Act and associated regulations.
In most cases, the primary issues considered by us is whether you meet the definition of a refugee or, alternatively, whether there is a real risk that you would suffer significant harm if removed from Australia to another country….
The review process varies according to the circumstances of each case. We may:
•seek further information, if it is considered necessary
•invite you to comment on any information that we consider would be (part of) the reason for not changing the decision under review
•invite you to appear to give oral evidence and present arguments at a hearing (in some cases by telephone or by videoconference) if a decision cannot be made based solely on your application and other documents submitted
•invite you to nominate other people who could give or provide evidence; and invite you to suggest other evidence or materials that we might obtain.
…
Can I give you further information or evidence?
… If you have any material not yet provided, which you believe supports your application, including a statement setting out why you disagree with the department's decision, please send this as soon as you can. If you provide further information or evidence that was not given to the department, in certain cases we will need to consider the credibility of what you have provided and why it was not provided to the department.
You should provide an English translation by an accredited translator of any documents written in other languages. Please send both the documents and the translations to us.
On 19 September 2017, the Tribunal wrote to the applicants advising it was unable to make a favourable decision on the information contained in the application alone (CB 114-119). That letter invited the applicants to appear before the Tribunal to give evidence and present arguments relating to the issues in their case on 30 October 2017. They were advised a Malay interpreter would be arranged for the hearing. The letter also asked the applicants to read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form. They were also advised to use the form or attach any additional information if they had any request or any new information which they wished the Tribunal to consider.
On 23 October 2017, the first applicant forwarded to the Tribunal a completed ‘Response to hearing invitation – MR Division’ form (CB 120-123).
The Tribunal hearing was conducted on 30 October 2017. Both of the applicants attended with the assistance of a Malay interpreter. The hearing record indicates that no submissions were received. The hearing commenced at 11.31am and closed at 12.49pm (CB 124-126).
On 25 May 2018, the Tribunal affirmed the decision not to grant the applicants visas (CB 133-139). The applicants were notified of the decision by email dated 28 May 2018. The letter attached a document titled ‘Information about decisions – MR Division’ (CB 130-132). Under the heading ‘Review of decisions’, the document set out the following:
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The email address used to send the decision to the applicants was one that had been provided by the applicants in their review application. That email had also been used by the Tribunal to provide the invitation to the hearing and the ‘Response to hearing invitation – MR Division’ form which was completed and returned to the Tribunal by email by the first applicant from that same email address.
THE APPLICATIONS FOR EXTENSION OF TIME AND JUDICIAL REVIEW
In the amended JR application filed 4 September 2019, the applicants outlined the following grounds for their EOT application:
1. I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
2. The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
The substantive grounds of review set out in the JR application are as follows:
1. The Tribunal misconstrued the risk of significant harm as set out in s36(2B) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life of significant harm to the applicants upon they (sic) returns (sic) to Malaysia for being married without family consent.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with provisions of the Migration Act.
3. The Tribunal has failed to investigate applicant’s claim, especially the grounds of persecution in Malaysia.
4. The second respondents failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, make (sic) no attempt to, and did not, comply with the requirements set out in section 424A of the Act.
On 4 April 2024, procedural orders were made by a registrar of this Court to ready the matter for an extension of time hearing. Those orders included that the applicants file and serve on or before 19 April 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which they sought to rely. No further materials were filed in accordance with those orders.
On 26 April 2024, the Minister filed an outline of submissions.
EXTENSIONS OF TIME – PRINCIPLES
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period provided by s 477(1) as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors which may be considered in the context of extension of time applications are not closed. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28, the High Court noted the broad terms of the discretion inherent in the phrase “necessary in the interests of administration of justice”. As a consequence, there are a range of permissible considerations relevant to the exercise of the discretion. It will be a matter for the judge hearing the extension of time application to determine which of that range of considerations make it necessary for an extension of time to be granted in a particular case: at [12]-[13], per Kiefel CJ, Gageler, Keane and Gleeson JJ; and [39]-[40], per Gordon, Edelman and Steward JJ.
The High Court in Katoa referred with approval to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 where his Honour identified the kinds of considerations which guide the exercise of the discretion to extend time. They are:
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the administration of justice as a result of the delay;
(d)the merits of the substantial application.
These factors provide guidance, promoting consistency in approach, but are not to be taken as exhaustive, or treated as a code: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [41] – [43], per Mortimer J.
Section 477(2) of the Act entrusts this Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed. As the merits of the proposed application are a permissible consideration, it is within this Court’s jurisdiction to have regard to that factor in such manner as it considers appropriate in the circumstances. Whether the assessment of the merits required is one undertaken at a “reasonably impressionistic level” or involves a more detailed analysis will depend on those circumstances: Katoa at [18]-[19], per Kiefel CJ, Gageler, Keane and Gleeson JJ. Finally, while the majority in Katoa held that in some cases the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending on other relevant factors, in other cases, for example where the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Katoa at [17]-[18]; see also [54], [62]-[63], per Gordon, Edelman and Steward JJ.
HEARING OF APPLICATION
The applicants appeared in person in this Court on 26 August 2024. They were unrepresented and assisted by interpreters in the Malay language. The second applicant spoke on behalf of both applicants.
The amended JR application as filed did not expressly state that an extension of time was sought. The Minister consented to the application being amended to seek the required order for an extension of time.
The applicants were taken to the materials before the Court, namely the JR application, the affidavit of the first applicant filed in support of the JR application dated 7 August 2018, the Court Book and the Minister’s submissions. The affidavit did not address the reasons for delay. It consists of a brief narrative of the procedural history of the applicants’ visa applications and a paragraph setting out their argument that the Tribunal decision was unjust and made without taking into account the full gravity of the circumstances of the claim.
I explained the issues that I considered particularly relevant to their EOT application, including the length of and explanation for the delay and the merits of their judicial review application. I also explained that so far as their JR application was concerned, the Court was limited to deciding whether the Tribunal had committed a serious legal error (or jurisdictional error) when making its decision.
CONSIDERATION
Length of delay and explanation
As noted above, the application for judicial review was filed 73 days after the Tribunal’s decision. This is more than double the time provided by s 477(1) of the Act.
The applicants’ amended application simply stated that they were not aware of the time limits involved. This was not the explanation provided to the Court during the hearing.
The applicants explained they had no lawyer to help them. They said they had approached a lawyer, but one said they could not help and the other’s fees were quite high. They confirmed they had not previously been represented by a lawyer or a migration agent either during the visa application or the Tribunal process.
The applicants also stated they initially thought the Tribunal decision would come in a letter. They had problems accessing their email. I was told that the email attaching the Tribunal’s decision was first accessed by the applicants two days after the time provided by s 477(1) of the Act. I asked why the applicants could not access their email account. I was told they had forgotten the details for the account. When asked why this information was not in their application, the applicants stated they got assistance from someone else to do the application. I was told they explained the information to the person concerned but that person did not include certain things.
I pointed out that the email address used to send the Tribunal decision was the one that had been consistently used by the Tribunal and delegate to communicate with the applicants. It is also apparent from the Court file that the same email address has been provided as the applicants’ email address for service. The second applicant said her husband did not access his email for a long time, and that the account locked up. She acknowledged they had not been checking the email account regularly and said it was their mistake in not accepting the email on time.
The Minister in response noted the difference between the two explanations provided for the delay. The explanation before the Court, it was submitted, boiled down to the following propositions:
(a)the applicants did not dispute that they had been properly notified of the Tribunal’s decision;
(b)the applicants do not claim they would not have seen the decision if they had checked their email regularly;
(c)it cannot be disputed that the notification of the decision included information to the effect that any application for review needed to be filed within a particular period.
The Minister submitted the explanation for the delay was inadequate. The delay involved was described as moderate and compounded by the inadequate explanation.
To the extent the EOT application relies on the applicants’ ignorance of the relevant time limits to explain their delay, the Court puts that to one side. That explanation was not supported by the applicants’ submissions during the hearing or any evidence.
In my view, the alternative explanation is also unsatisfactory. The applicants could not explain why they did not monitor the first applicant’s email account, particularly in circumstances where it was the means consistently used by the Department and the Tribunal to communicate with them from the time their visa applications were first made. There is nothing apparent from the material in the court book or the Court’s file suggesting that the applicants may have missed information previously sent to them by email. The applicants also could not point to any information or specific reason why they were led to believe that the Tribunal’s decision would be sent to them by post rather than by email.
This weighs against the applicants being granted an extension of time.
Prejudice
The Minister conceded in their written submissions that no prejudice (other than costs) would be suffered if an extension of time was granted. It was submitted, however, that the absence of prejudice was not a sufficient basis to warrant the grant of an extension of time: Hunter Valley at 349, per Wilcox J.
The absence of prejudice weighs in favour of the grant of an extension of time.
Merits
The applicants say there was a lack of procedural fairness and factual and legal errors committed by the Tribunal justifying the grant of an extension of time. The Minister submits the proposed grounds of the JR application and matters put forward by the applicants during the hearing are not reasonably or sufficiently arguable to warrant the grant of an extension of time. Before proceeding to consider the applicants’ ground of review and the parties’ submissions as to the merits of the judicial review application, it is necessary to set out the decisions made below.
The delegate’s decision
The delegate found that the applicants were not persons in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act. Further, the delegate found that neither of the applicants were members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant: ss 36(2)(b) and (c) of the Act (CB 87, [1]).
In rejecting the applicants’ claim pursuant to the refugee criteria, the delegate considered the country information concerning illegal money lending or loan sharking in Malaysia (CB 91- 102, [24]). The delegate noted the applicants claim fear of harm from loan sharks in Malaysia because of their unpaid debts (CB 102, [25]). The delegate noted, however, that the applicants had “provided their claims in minimal and vague details”. The delegate observed the first applicant had “not outlined his reasons for taking the loan, why he could not repay, what he did with the borrowed money, who he borrowed from and any time frame of the alleged events”. It was also noted the first applicant had “not substantiated his claims with any evidence” (CB 102, [26]). Against that background, the delegate stated the following (CB 102):
27. The country information set out above indicates that although Malaysia experiences loan sharking, the money lending industry in the country is regulated by Malaysian legislation which is enforced by the Royal Malaysian Police (RMP). Country information also suggests that the Malaysian authorities- including the RMP and judiciary - are reasonably effective in combating illegal money lending and organised crime; and protecting persons within their jurisdiction from criminal harm. While there is some corruption within the system, the applicant does not claim to have personal experience of this. In addition, he has not substantiated this claim of borrowing money with relevant detail and supporting evidence (such as documents relating to his loan).
28. Without further context, I do not accept that the State would be unable or unwilling to protect him in his particular circumstances. I find on the information before me that he would receive effective protection from the RMP and judiciary in Malaysia against any threats he faces from illegal money lenders.
Findings
29. I find that the receiving State, or a party or organisation that controls the State or a relevant part of the State or a substantial part of the territory of the relevant State, could provide protection against persecution to the applicant. I also consider that the State, or the relevant party or organisation, is willing and able to offer such protection.
30. In addition, I find that the applicant can access the protection, the protection is durable and in the case of protection provided by the relevant State - the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
31. I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in Section 5H of the Act and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason. (emphasis added)
Essentially, the delegate determined the applicants did not meet the definition of a “refugee” as it was found that effective protection measure were available to them in Malaysia meaning they did not have a well-founded fear of persecution within the meaning of s 5H(1) due to the operation of s 5J(2) of the Act.
This finding then flowed into the delegate’s subsequent finding that the first applicant could obtain from an authority of the country protection such that there would not be a real risk he will suffer significant harm as outlined in s 36(2B)(b) of the Act. As a consequence, the delegate found he was not owed protection pursuant to s 36(2)(aa) of the Act.
The Tribunal’s decision
The Tribunal’s decision commenced by setting out the relevant criteria and mandatory considerations for the grant of the visas (CB 134-135, [4]-[9]). The decision set out a summary of the first applicant’s claim for protection set out in his visa application (CB 135, [13]). The Tribunal then identified that the relevant issues in its review were whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removing the applicants from Australia to their receiving country of Malaysia, there was a real risk that the applicants will suffer significant harm (CB 135, [14]).
The Tribunal then identified principles relevant to the assessment of credibility (CB 136, [16]-[20]) before setting out the evidence and findings in respect of the first applicant as follows:
21. At the Tribunal hearing the applicant said that sometime in 2014 he could not remember the date, he borrowed 15,000 MR from an unlicensed money lender. He said he called a number he saw on a sticker on a lamp post advertising money lending. The Tribunal asked what the names of the lenders were and the applicant said he did not know. The Tribunal asked what the phone number was for the money lenders and the applicant said that he lost it. The applicant said he couldn’t get a loan from the bank and his parents couldn’t help him so he had to go to the money lenders.
22. In his oral evidence the applicant stated that he made about 5000 MR in payments then he bought a car. He got a loan from the bank. When the Tribunal queried him about the loan from the bank since he already said he had been denied a loan from the bank the applicant said the bank was happy to loan him money for the car, but not for his wedding which is why he originally wanted the loan from the bank. The car cost 20,000 MR. The repayments on the car were 500 MR per month. Then the money lenders started coming to his house and his workplace. The applicant said they were Indian Malays and that they came two times to his house. When asked how many times they came to his workplace he said he didn’t know. When asked how they knew where he lived he said that they asked him to write it down when he took the loan.
23. The applicant said that they came looking for money several times and kicked and hit him. The applicant said his wife saw the men kick and hit him. When asked what the dates were when they came to the house and kicked and hit him, he said he didn’t know. He said they bruised him. He also said they would ring and text him. The Tribunal asked if he had a call log showing all the calls and texts and he said no. The Tribunal asked if he had any photos from being hit and kicked and he said no.
24. The Tribunal asked how they paid him the 15,000 MR and the applicant responded that they paid him in cash. When asked if he had any documentation about the loan he said he did not. The Tribunal asked the applicant if he went to the police and he said no.
25. The Tribunal asked the applicant if his wife knew he had taken the loan and he said he only told her after the wedding. When asked why he came to Australia he said the money lenders threatened to do more to him than just beat him. He said they didn’t specify what that meant but he had heard stories about the money lenders beating people to death.
26. The Tribunal has concerns with the applicant’s claims and credibility during the Tribunal hearing. First the applicant replied he didn’t know to the most basic of questions around when he borrowed the money, where he borrowed the money, who the money lenders were and how often they came to his house or workplace. The applicant’s own claims are based on borrowing money from money lenders, being threatened and having to flee to Australia yet even the most basic of questions the applicant could not answer.
27. The applicant told the Tribunal he went to the money lenders because he could not get a loan from the bank. Yet later when giving his evidence at the Tribunal hearing he said he went to the bank and took out a 20,000 MR car loan. When questioned about this discrepancy in his evidence he said that the bank would lend him the money for the car but not for his wedding. This is not credible testimony as he said he went to the money lenders specifically because the bank would not lend him the money yet he then claims when he went for a car loan they loaned him the money.
28. Given the lack of information and detail provided at the hearing the Tribunal does not believe that the applicant borrowed any money from money lenders. The applicant’s non responsiveness and inability to answer the simplest questions about his money lending leads the Tribunal to conclude that the applicant’s claims in this regard are not genuine or urgent.
29. The Tribunal also finds that the applicant’s story of borrowing from the money lenders because the bank would not lend him the money then actually borrowing money from the bank to be implausible and contrived. In this regard the applicant has further invited the Tribunal to consider the applicant does not have any genuine personally held fears of persecution if he were to return to Malaysia as the applicant has contrived his critical written and oral claims about his money lending purely for migration purposes.
30. Overall, the applicants written claims and oral testimony about the money lenders are lacking in documentary evidence as well as plausibility. Cumulatively, considering these adverse credibility concerns, the Tribunal is unable to provide the applicant the benefit of the doubt that his critical claims or protection are reliable or credible. Based on this, the Tribunal does not accept that the applicant has a real chance of serious harm arising from the money lenders or anyone associated with them if he is returned to Malaysia. It does not accept that he has been threatened or physically harmed arising out of the claimed debts to the money lender as the Tribunal has assessed that the applicant fabricated these claims and these claims are not based on a genuine, deep, urgent or factual fear of persecution, either at the time of application, during the scheduled hearing, now or into the foreseeable future.
31. As these claims are found to have been contrived for migration purposes the Tribunal finds that the applicant does not have a real chance of serious harm for any reason mentioned in s.5J(1)(a), if he were to return to his home state or anywhere in Malaysia, now or in the reasonably foreseeable future.
32. In this regard, the Tribunal finds that the applicant does not have a well-founded fear of persecution that would satisfy s.36(2)(a).
33. Based on these adverse credibility findings about these specific claims, the Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, Malaysia, will suffer significant harm of any kind pursuant to s.36(2)(aa), in this regard.
The Tribunal noted the second applicant’s claim relied on that of her husband. It then dealt with her evidence as follows:
35. During the hearing the applicant was asked when she found out that her husband had borrowed money from the money lenders. The second named applicant said that they had decided to borrow from the money lenders together as they needed the money to pay a bank loan.
36. The second named applicant said that they borrowed 10,000 MR and that it was under her name not her husbands. The second named applicant also said that it was after their wedding when they incurred the debt.
37. The second named applicant said that they made some repayments to the money lenders. When asked by the Tribunal about the husband (the applicant) being kicked and punched by the money lenders she said that her husband is a quiet type and doesn’t say much but that she saw the marks on his body.
38. The second named applicant said they did not go to the police because it would have made things worse. When asked why she came to Australia the applicant said her brother was here and he asked them to join him to make money and pay off their debts.
39. The second named applicant contradicted her husband’s own evidence that he alone had secured a loan from the money lenders that he had gone to the bank but they would not give him a loan and that is when he went to the money lenders. However the second name applicant said they went together, they needed the money to pay the bank. When the applicant was asked about the contradiction she said she didn’t know.
40. When asked about the money lenders beating her husband the second named applicant responded that her husband was the quiet type and that he didn’t ever say much but she had seen the marks on him. She did not add anything further to her evidence.
41. Overall the oral testimony about the loan and money lenders are lacking in documentary evidence as well as plausibility. Cumulatively, considering these adverse credibility concerns, the Tribunal is unable to provide the applicant the benefit of the doubt that her critical claims for protection are reliable or credible. Given the contradiction that they both took the loan and it was a different amount the Tribunal does not accept that applicant has a real chance of serious harm arising from money lenders or anyone associated with them. The Tribunal has assessed that the applicant has fabricated these claims solely for migration purposes and not because of a genuine, deep, urgent or actual fear of persecution based on these claims, either at the time of application, during the scheduled hearing, now, or into the foreseeable future.
42. As these claims are found to have been contrived for migration purposes. The Tribunal finds that the applicant does not have a real chance of serious harm for any reason mentioned in s.5J(1)(a), if she were to return to her home state or anywhere in Malaysia, now or in the reasonably foreseeable future.
43. In this regard, the Tribunal finds that the applicant does not have a well-founded fear of persecution that would satisfy s.36(2)(a).
44. Based on these adverse credibility findings about these specific claims, the Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk the applicant, as a necessary and foreseeable consequence of being removed from Australia to her country of reference, Malaysia, will suffer significant harm of any kind pursuant to s.36(2)(aa), in this regard.
The Tribunal concluded the applicants did not satisfy the refugee and complementary protection criteria pursuant to s 36(2)(a) or (aa) of the Act. It further concluded that meant they were unable to satisfy the further criteria pursuant to s 36(2)(b) and (c) of the Act. As a consequence, the Tribunal affirmed the delegate’s decision to refuse the visas.
The grounds of review
I took the second applicant to each of the grounds set out in the application for review and asked her to explain the mistake she considered had been made by the Tribunal. Understandably, the second applicant’s submissions were not obviously directed at the grounds as set out but attempted to explain the problems she perceived with the Tribunal process and decision. While it appears the applicants had received some assistance in drafting the grounds of review, they were not particularly responsive to the decision actually made by the Tribunal. This is notably the case in respect of ground one, which refers to the Tribunal construing (narrowly) the risk of significant harm to the applicants upon their return to Malaysia for being married without family consent. No aspect of the applicants’ claims for protection concerned being married without consent. The second applicant confirmed that their claims for protection related to loan sharks. She explained the person who assisted in drafting the ground misinterpreted what they were told.
In outlining the basis of the applicants’ application for judicial review, the second applicant made a number of complaints falling into two broad themes with some overlap: first, that the Tribunal process was procedurally unfair; and secondly, that the applicants’ language difficulties and problems with the interpretation of the proceedings infected the Tribunal’s findings and contributed to procedural unfairness. I also took the second applicant to each of the grounds of review set out in the JR application.
Procedural unfairness
Applicants’ submissions
The applicants stated they did not get proper guidance at the Tribunal. They say they did not know they had to provide evidence of what they had to say. They had no one acting for them. They did not have much English. Things mentioned and said during the hearing were not well understood by them. When I pointed out they had an interpreter during the hearing, the applicants acknowledged that was the case but said they could not give the Tribunal everything they wanted fully because of the language problem. The applicants also stated there was probably a misunderstanding between what they wanted to say and what was interpreted. This point is discussed further below. The second applicant explained she was very emotional during the hearing and did not entirely understand what was required. She said that the manner of being questioned felt like being interrogated, for example by a police officer. She accepted she understood the questions being asked but could not think very well at the time. She described that they went blank. This explained why they could not answer the questions.
The applicants accepted they knew they would be asked questions about their claims for protection during the Tribunal hearing but did not know how and when they would be required to present the evidence. They stated they did not know they had to take evidence or prepare all these things. They thought it was just a question and answer session. The second applicant thought she may have asked the interpreter outside the hearing about having more time.
Minister’s submissions
As to the complaints the applicants were not given an opportunity to produce documentary evidence they offered to provide, the Minister submitted there was no indication in the hearing record or the Tribunal’s decision of any such time being requested. As to the claim the applicants did not know they had to prepare evidence for the hearing, the Minister drew attention to the correspondence from the Tribunal including the invitation to attend the hearing which clearly put the applicants on notice that they needed to bring their evidence. The Minister also submitted there had been no attempt by the applicants to identify what documents or other evidence would have been produced if more time had been afforded or the applicants had a better understanding of the process and how it would have materially affected the decision.
Consideration
While the Court accepts it is difficult for those navigating the migration process, particularly where English is not their first language or their financial circumstances do not permit them to obtain legal assistance, the Minister’s submissions must be accepted. The applicants received notice of the need to be ready to present their evidence and submissions at the Tribunal hearing. The first of such notices was sent to the applicants a year prior to the hearing taking place: see [8] above. A similar notice was provided in September 2017: see [9] above. In the approximately 7 months between the Tribunal hearing and the Tribunal’s decision, there is no suggestion the applicants attempted to provide further evidence.
The Tribunal also arranged for an interpreter in the Malay language to address the disadvantage experienced by the applicants as a result of their difficulties with the English language. I cannot discern from the decision any questioning of the applicants which was improper or any suggestion they were overborne or intimidated. The Tribunal member was entitled to question the applicants (even vigorously) about their claims, test their evidence and bring to their attention any apparent inconsistencies: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [30]-[31], per Gleeson CJ, Gaudron and Gummow JJ. If the Tribunal had not brought those inconsistencies or its other concerns with the evidence to the applicants’ attention, it would have breached its obligation to give them an opportunity to deal with the critical issues or factors on which its decision was likely to turn: Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 587. The applicants were invited to attend the Tribunal hearing in accordance with s 425 of the Act. There is no suggestion either in the applicants’ submissions or on the face of the Tribunal’s decision that any request was made of the Tribunal to adjourn the proceedings or that any offer was made to provide further information.
In the respects set out above, any complaint that the Tribunal proceedings were procedurally unfair is not reasonably arguable.
Interpreting issues
Applicants’ submissions
As noted, the applicants raised issues with the interpretation of the Tribunal proceedings, suggesting what was said during the hearing was not well understood by them and that there was “probably” a misunderstanding between what they wanted to say and what was interpreted. The second applicant initially responded that she had read the Tribunal’s reasons for decision but did not understand it fully. When asked why she had not sought assistance to do that, the second applicant said she thought it was a very private matter for them.
I asked the applicants to explain what in the decision reflected a problem with the interpretation of their evidence. The second applicant focussed on the Tribunal’s observation that there were discrepancies between the applicants’ answers regarding the loans from the money lenders. The second applicant explained she was trying to say she had no knowledge that her husband had obtained the loan from loan sharks before they were married. It was her husband who got the loan. Another time they went together to get a loan to pay existing loans. She told the Court the interpreter said her husband went alone but that she had in fact said they went together. She explained there were two separate occasions which were interpreted as one incident. She later explained that she was not saying the interpreter was wrong but that they missed things in their interpretation.
The applicants confirmed they had not made any efforts to obtain a transcript or recording of the hearing before the Tribunal. The second applicant said she did not know if they could ask for a transcript or not.
Minister’s submissions
The Minister submitted there was nothing on the face of the decision to suggest there were any interpreting issues during the hearing. The Tribunal’s hearing record indicates there was an interpreter in the Malay dialect who was affirmed during the proceedings. The hearing went for over an hour which would have afforded sufficient time for the proceedings to be interpreted.
The Minister also submitted the Tribunal’s concerns about the applicants’ evidence was not confined to how many loans had been taken out. The level of discrepancy between the applicants’ accounts was extensive and not confined to that issue. Other discrepancies included the amount of the loan and whether the second applicant had seen her husband be assaulted.
Consideration
The combined effect of s 425 and 427(7) of the Act requires the Tribunal to provide a competent interpreter where the applicant is not proficient in English: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20], per Kenny J. The function of an interpreter is to remove barriers which may prevent or impede understanding or communication: Perera at [24]. The interpretation need not be at the very highest standard but must be sufficient to express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [29]. The ultimate question is one of the fairness of the hearing and the process: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] and [24] per Allsop CJ. “The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision”: SZRMQ at [66] per Robertson J.
The applicants have not placed any evidence before the Court to establish any mis-interpretation or failure to interpret evidence given during the course of the Tribunal hearing. I recognise the applicants are unrepresented, but it is also significant, in my view, that no reference to such issues was made either in the substantive grounds of review or the grounds for an extension of time. The Court is left to consider whether there is sufficient substance to the issues raised by applicants by reference to the Tribunal’s hearing and decision records.
At their highest, the applicants’ complaints regarding the quality of the interpretation of the proceedings raised two issues. The first was a general issue concerning whether they had sufficient understanding of what was occurring during the hearing. The second applicant, however, told the Court that (with the assistance of the interpreter) she did understand the Tribunal member’s questions. The Tribunal’s decision sets out in some detail the exchanges between the Member and the applicants. There is not the least suggestion in that record that either of the applicants gave unresponsive answers or that they misapprehended the questions being put to them. It also appears they were given opportunities to explain inconsistencies as they arose during the course of the hearing.
The second issue highlighted by second applicant as I understood it concerned whether there had been one or two transactions with money lenders. The second applicant says the interpretation conveyed the impression there was only one transaction when there were in fact two. It is apparent from the Tribunal’s decision that the Member sought to clarify with the second applicant why there was a difference in the applicants’ accounts as to when they had obtained money from the money lender and whether they did so alone or together (CB 138, [39]). The answer recorded in the Tribunal’s decision is that the second applicant did not know. The second applicant has not attempted to explain why that answer was given. The submissions did not suggest that response was inaccurate. The Tribunal appeared to have understood the second applicant’s evidence suggested there was a second loan, and explored it during the hearing.
I do not consider that the applicants have raised a sufficiently arguable case that there were issues with the interpretation of the proceedings before the Tribunal, such that they led to material unfairness in the hearing or decision-making process more generally.
Ground one
I have already identified the issues with the ground as articulated not reflecting the claim actually made by the applicants. To the extent the applicants’ submissions addressed this ground in the context of their claims to have been threatened by money lenders, they principally focussed on the findings that there were discrepancies between their evidence and that their claims were not credible. In respect of the Tribunal’s finding that it was implausible that the applicants had to obtain a loan from money lenders because the bank would not lend them money when they were able to obtain a loan from a bank a short time later, the applicants disagreed with this assessment.
The Minister submits the Tribunal did not fail to consider the claims expressly advanced or articulated or sufficiently raised by the material before it: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 398; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ. In any event, as the Tribunal did not accept the applicants’ factual claims for protection, the Tribunal could not have been satisfied that s 36(2B) of the Act was relevant.
Consideration
The Minister’s submissions must be accepted. There was no error demonstrated in the Tribunal’s approach to the protection criteria. The Tribunal did not accept the gravamen of the applicants’ claim at a factual level and was, therefore, bound to affirm the decision refusing the visa. In my view, ground one does not raise a sufficiently arguable case to warrant the grant of an extension of time.
Ground two
This ground is not easy to follow in the absence of particulars. I have treated it as alleging the Tribunal’s decision was not arrived at in accordance with the Act.
I asked the applicants what they wanted to say about this ground. The second applicant submitted the Tribunal’s decision record shows the applicants came here because they wanted to live here and also said they borrowed money so they could come here. I do not understand the Tribunal to have found the applicants borrowed money so they could come to Australia. I understand the Tribunal to have not been satisfied that money had been borrowed from loan sharks at all. The Tribunal, however, did find the claims were contrived for a migration purpose.
The Minister submits that ground two is so general a ground as to be meaningless without further particulars. It was submitted the Tribunal clearly set out the reasons for reaching its decision which was largely predicated on the rejection of the applicants’ claims. The reasons given by the Tribunal to support its conclusion that it was not satisfied of the applicant’s critical claim to fear harm in Malaysia were open to it and probative of the material before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham(2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J. To the extent the applicants take issue with the ultimate finding, the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 at 272; [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh, Gummow JJ.
Consideration
The Minister’s submissions must be accepted for similar reasons to those set out at [68] above. The Tribunal’s conclusions appear to have been open to it and supported by the evidence before it. It has set out its credibility findings and reasons for them in some detail. Making findings on the credibility of the applicants’ claims is the function of the Tribunal: Durairajasingham at [67]. It is not the function of this Cout to reconsider the merits of the decision: Liang at [31]. The credibility findings made by the Tribunal do not appear to be unreasonable, illogical, or absent a probative basis. The applicants appear to have been given opportunities to explain the problems the Tribunal had with their evidence: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83], Griffiths, Perry and Bromwich JJ. In my view, ground two does not raise a sufficiently arguable case that the Tribunal’s credibility findings were tainted by jurisdictional error.
Ground three
This ground contends the Tribunal failed to investigate the applicants’ claim, with specific reference to the grounds of persecution in Malaysia. I asked the second applicant to explain how she says the Tribunal failed to investigate their claims. The second applicant told me the Tribunal did not ask for further evidence at that time. She also said at that time they were staying with the second applicant’s mother. It was not clear what time she was referring to, but I understood her to be explaining they were staying with the second applicant’s mother when they experienced issues with the money lenders. She explained the applicants applied for protection in Australia because they could not go anywhere, she had to save herself and her family and no action was taken in Malaysia.
The Minister submits in this case the Tribunal was under no duty to inquire. First, it was submitted the Tribunal was under no obligation to accept uncritically any and all allegations made by the applicants: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253 at [21] per Beaumont J. It was for the applicants to make out their case before the Tribunal and, if the Tribunal cannot be satisfied on the basis of the material presented that the applicants’ claims are genuine, it has no duty to make further inquiries or obtain information beyond that provided to it by the applicants: Cf. Minister for Immigration and Citizenship v SZIAI(2009) 83 ALJR 1123; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [17], [19] per Gleeson CJ, [43] per Gummow and Hayne JJ, and [124] per Callinan JJ. Secondly, the Minister submits this is not a case where the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained. Further, no duty to inquire is made out where the applicants fail to identify any material to indicate that any further inquiry by the Tribunal could have yielded a useful result: SZIAI at [25]-[26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; SZOER v Minister for Immigration and Citizenship [2010] FCA 1100 at [32], [39]-[54] per Cowdroy J.
Consideration
In SZIAI, the High Court identified the duty imposed upon the Tribunal by the Act is a duty to review. It recognised that in some circumstances a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to the outcome as to constitute a failure to review or a constructive failure to exercise jurisdiction: at [25]. In the circumstances of that case, where there was nothing on the record to indicate that any further inquiry could have yielded a useful result, the High Court concluded there was no factual basis for concluding the Tribunal’s failure to inquire supported a finding its decision was infected by jurisdictional error: at [26].
In this case, the applicants have not identified what, if any, information could have been ascertained by the Tribunal. There is nothing on the face of the decision capable of supporting a conclusion that further inquiry would have yielded a useful result. It appears the Tribunal discussed the critical issues with the applicants, eliciting information from which it reached its critical conclusions. It was otherwise open to the applicants to provide information to the Tribunal in support of their claim. The letters from the Tribunal advised the applicants of this opportunity. In my view, ground three does not raise a sufficiently arguable case to warrant the grant of an extension of time.
Ground four
This ground alleges the Tribunal failed to give the applicants clear particulars of any information it considered would be part of the reason for affirming the delegate’s decision in breach of s 424A of the Act. The second applicant submitted the Tribunal did not give the applicants any information to the effect it did not consider the applicants’ claim for protection was substantiated. She also submitted the Tribunal did not explain what would happen if the applicants did not give the evidence the Tribunal wanted.
The Minister submits this ground fails to identify the information said to enliven s 424A of the Act. It was noted the Tribunal rejected the applicants’ claims on the basis of adverse credibility findings based on its subjective appraisals of the evidence provided by them. It was submitted the Tribunal’s appraisals of evidence, thought processes and determinations do not constitute “information” for the purposes of s 424A: SZBYR v Minister and Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The Minister also submitted s 424A did not require the Tribunal to give the applicants an opportunity to comment on inconsistencies between their respective oral evidence as the inconsistencies between these accounts did not amount to a rejection, denial or undermining of the other spouse’s account, but rather led to the Tribunal doubting their version of events: SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053 at [26]-[34] per Rares J.
The Minister also submitted there was nothing the applicants were not on notice of. They were on notice of the dispositive issue as the delegate’s decision identified the detail of the applicants’ claims was minimal and vague. On that basis, the applicants were on notice that one of the issues was whether the information they had provided satisfied the visa criteria. On that basis, the Minister submitted it was difficult to see how the applicants could have been ignorant of the requirement to establish their claims. The Tribunal’s correspondence also put them on notice.
Consideration
At the time of the Tribunal hearing, s 424A of the Act relevantly provided as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies — by one of the methods specified in section 441A; or….
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.
It is well settled that a breach of the obligation cast upon the Tribunal pursuant to s 424A constitutes a jurisdictional error. Further, its temporal effect is not limited to the pre-hearing stage: see SZBYR at [13] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The section does not require notice to be given of every matter the Tribunal might think relevant to the decision under review, but is limited to particulars of matters meeting the description of “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review”: SZBYR at [15]. In SZBYR, the plurality of the High Court observed that “if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1).” The plurality also cited with approval the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at 476-477, [24] that the word “information”:
does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
Rather, information in the context of s 424A “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”: SZBYR at [18].
The ground as set out in the JR application did not provide particulars of the information said to engage s 424A in this case. The second applicant’s submissions appear to be directed at not being provided information about the process or a warning that the Tribunal did not consider the applicants’ claim for protection was substantiated. First, neither of those matters constitute “information” within the meaning of s 424A. Secondly, each of those matters was dealt with in the Tribunal’s correspondence to the applicants. They were invited to attend a hearing premised on the Tribunal being unable to make a favourable decision on review on the material it had before it.
The Tribunal’s reasons for affirming the decision centred on its rejection of the applicants’ claim they owed money to loan sharks and had been threatened and assaulted as a consequence of that debt (or debts). It rejected their claim because it disbelieved the applicants’ evidence including because of inconsistencies and gaps identified in that evidence. As the High Court in SZBYR makes clear, such matters are not “information” and do not engage s 424A.
In my view, ground four does not appear to raise a sufficiently arguable case to warrant the grant of an extension of time.
Conclusion on merits
The applicants’ grounds of review and the matters raised during the course of the hearing of the EOT application do not appear to identify any arguable case of jurisdictional error on the part of the Tribunal. I have considered the decision carefully and have not been able to identify any arguable grounds of jurisdictional error on the part of the Tribunal. This weighs heavily against granting an extension of time.
CONCLUSION
The absence of a satisfactory explanation for the delay in filing the JR application and lack of any arguable case of jurisdictional error are such that I conclude it is not in the interests of the administration of justice to grant the applicants an extension of time in this matter.
The applicants’ application for an extension of time in which to file their JR application is dismissed. I will hear the parties as to costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 2 October 2024
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