Ejn20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) - [2022] FedCFamC2G 348

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 348

File number(s): PEG 290 of 2020

Judgment of: JUDGE LUCEV

Date of judgment: 12 May 2022

Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Pakistan – involvement with polio immunisation program – whether failure to discharge duty to review – whether errors going to conclusion on credibility – whether errors going to availability of domain name and email address – whether fair hearing process – alleged failure to warn of the consequences of additional claim being made – issues with Tribunal’s style of questioning –whether three hearings necessary – whether deadline for submissions unreasonable – whether jurisdictional error

Legislation:
Evidence Act s 56

Migration Act 1958 (Cth) Pt 7, Div 4, ss 5AAA, 36, 65, 91X, 100, 101, 104, 105, 348, 359A, 422B, 423A, 424A, 425, 426A, 441A, 474, 476

Cases cited:
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1

Brar v Minister for Immigration & Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196

CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038

Dimitropoulos v Australian Securities and Investments Commission [2019] AATA 1350

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 48 ALD 481

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

NADR v Minister for Immigration & Indigenous Affairs [2003] FCAFC 167

Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609

Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

WZATN v Minister for Immigration and Border Protection [2014] FCCA 8617

Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476

Division Division 2 General Federal Law

Number of paragraphs: 110

Date of hearing: 13 August 2021

Place: Perth

Applicant: Appeared in person

Counsel for the First Respondent: Ms S Oliver

Solicitor for the First Respondent: Sparke Helmore

Second Respondent: Submitting appearance, save as to costs
ORDERS

PEG 290 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EJN20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

12 MAY 2022

THE COURT ORDERS THAT:
1.The originating application filed on 6 October 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LUCEV
INTRODUCTION

Before the Court is an application filed by the applicant, EJN20, in the Perth Registry of this Court on 6 October 2020 under s 476 of the Migration Act1958 (Cth) (“Migration Act”) (“Judicial Review Application”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down on 10 September 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant EJN20 a Class XA Subclass 866 Protection visa (“Protection visa”) of 7 November 2016.
The Judicial Review Application contains two grounds. The grounds of review are set out at [66] (ground 1) and [82] (ground 2) below. The Court has also considered a possible further ground of review, as set out at [105]-[108] below. The Court Book (“CB”) was marked as Exhibit 1. To endeavour to ensure EJN20’s anonymity, certain names of places and persons have been omitted or anonymised in the following Reasons for Judgment: cf Migration Act, s 91X.
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)EJN20 is a citizen of Pakistan: CB 113 at [1];
(b)on 22 April 2015 EJN20 arrived in Australia as the holder of a Class TU Subclass 573 Student visa (“Student Visa”): CB 129 and 293;
(c)on 25 June 2015 EJN20 applied for the Protection Visa: CB 31-100;
(d)in his Protection Visa application EJN20 claimed:
(i)to fear harm from the Pakistani Taliban group, Tehrik-e-Taliban (“TTP”), on the basis of aid work he had undertaken for the Government of Pakistan as part of a collaborative project with the World Health Organisation (“WHO”) and United Nations International Children’s Emergency Fund in their polio vaccination program: CB 113 at [6]-[7];
(ii)he had received threatening letters: CB 113 at [6] and 114 at [8], as well as numerous threatening telephone calls: CB 114 at [9], in relation to his polio vaccination work;
(iii)he was followed by two people on a motorbike when he shopped at a bazaar some kilometres away from his home village and that these people later opened fire on the bazaar but that he escaped by running away: CB 114 at [11]; and
(iv)he thereafter realised that Pakistan was no longer safe for him and began to make arrangements to leave on a Student Visa: CB 115 at [17],
(e)on 7 November 2016 the Delegate’s Decision was made to refuse to grant the Protection Visa: CB 125-138;
(f)on 6 December 2016 EJN20 applied to the Tribunal for review of the Delegate’s Decision: CB 139-145;
(g)on 17 December 2019 EJN20 was invited to appear before the Tribunal on 21 January 2020: CB 150-153;
(h)on 21 January 2020 EJN20 attended a hearing before the Tribunal: CB 158-160 (“First Tribunal Hearing”) with the assistance of a Pashto interpreter. The First Tribunal Hearing went for 47 minutes and the Member requested EJN20 provide materials at least one week prior to a further Tribunal hearing: CB 160;
(i)on 21 February 2020 EJN20 was invited to appear before the Tribunal again on 9 March 2020 (“Second Tribunal Hearing”): CB 163-165;
(j)on 3 and 6 March 2020 EJN20 provided evidence to the Tribunal. This included a letter signed by an official from the Office of the District Coordinator of EPI (Expanded Program on Immunization) under the WHO stating EJN20 had been part of their EPI campaigns, a letter from a rural health centre (“Health Centre” and “Health Centre Letter” respectively) confirming the correct name of the Health Centre and a list of hospitals to which EJN20 had referred at the First Tribunal Hearing: CB 174-175 and 176-179;
(k)on 9 March 2020 EJN20 appeared at the Second Tribunal Hearing with the assistance of a Pashto interpreter. The Second Tribunal Hearing went for close to two hours: CB 180-182;
(l)on 25 March 2020 EJN20 sent submissions to the Tribunal and made a complaint about the “tricky” questions the tribunal had asked him at the Second Tribunal Hearing. EJN20 requested that a new tribunal be constituted to “listen to [his] case”: CB 235-242 (“Recusal Request”);
(m)on 9 June 2020 the Tribunal asked EJN20 to give specific examples of when he found the Tribunal difficult to understand, by reference to the audio recording of the Second Tribunal Hearing: CB 246-248;
(n)on 23 June 2020 EJN20 responded by identifying six occasions during the Second Tribunal Hearing in which he found the Tribunal difficult to understand: CB 247 and 249-250;
(o)on 26 June 2020 the Tribunal sent EJN20 a letter inviting him (pursuant to section 359A of the Migration Act) to comment on information, being extracts of transcript of the portions of the Second Tribunal Hearing that EJN20 had identified as being portions where he found the Tribunal difficult to understand (“Invitation to Comment”): CB 253-275;
(p)on 26 June 2020 EJN20 was again invited to appear before the Tribunal: CB 276-279;
(q)on 13 July 2020 EJN20 responded to the Invitation to Comment: CB 280-282;
(r)on 15 July 2020 the Tribunal advised EJN20 that it had refused the Recusal Request: CB 283-284;
(s)on 22 July 2020 EJN20 attended a further Tribunal hearing (“Third Tribunal Hearing”) with the assistance of a Pashto interpreter. The Third Tribunal Hearing went for an hour and 10 minutes: CB 285-287. Following the Third Tribunal Hearing, an email dated 24 July 2020 was sent to EJN20 stating no further information was requested from him but that he had until 30 July 2020 to provide any further submissions in relation to the matter if he so wished: CB 289;
(t)EJN20 filed no further submissions; and
(u)on 10 September 2020 the Tribunal Decision affirmed the Delegate’s Decision: CB 292-346.
TRIBUNAL DECISION
The Tribunal Decision is long and detailed, running to 55 pages (including a four page attachment) and 209 paragraphs.
Preliminary matters
By way of preliminary matters the Tribunal Decision sets out:
(a)EJN20’s migration history: CB 293 at [2]-[3];
(b)the course of the proceedings before the Tribunal, including the fact that there were three Tribunal hearings, and noting that EJN20 was not represented, but was assisted by an interpreter fluent in the English and Pashto languages: CB 293 at [4]-[5];
(c)accepted that EJN20 was a citizen of Pakistan, and that Pakistan was the receiving country: CB 293 at [7];
(d)noted that the essential and significant reason that EJN20 feared harm in Pakistan was his being threatened with death by the TTP due to his profile as a paid casual polio eradication worker assisting NGO campaigns between May and December 2013 in the region around his home village: CB 293 at [10], but also considered whether the general security situation in Pakistan engaged Australia’s complementary protection obligations: CB 294 at [11];
(e)noted that in the Delegate’s Decision the Delegate did not accept that EJN20 was or is being threatened by the TTP, and that he had been a polio worker at some point in the past but that he had not been involved in any such employment since 2013: CB 294 at [12];
(f)in the Tribunal Decision at CB 294 at [14] said that:
14.… I have made a number of adverse findings relating to the credibility of the applicant’s core claims for protection. As is discussed in detail below, in part my findings have been made due to certain corroborating evidence that the applicant has adduced. Some of this evidence was unsatisfactory in its terms, some was inexplicably illogical and some has been deprived of persuasive force because of the existence of inconsistent statements made by the applicant.
(g)set out, at very considerable length, the reasons for refusing the Recusal Request: CB 295-316 at [19]-[90] (which do not appear to be relevant to the two grounds of review in this Judicial Review Application).
Tribunal’s consideration of claims and evidence at the three Tribunal hearings
The Tribunal then considered the claims and evidence of EJN20, and did so by separately addressing the matters raised at each of the First, Second and Third Tribunal Hearings: CB 317–342 at [91]–[205].
First Tribunal Hearing
At the First Tribunal Hearing the Tribunal:
(a)read to EJN20 a summary of his claims for protection from the Delegate’s Decision (which EJN20 had provided to the Tribunal for his application for review) as follows, as set out at CB 318–319 at [98]–[99]:
98.Also at the first hearing, I read to the applicant a summary of his claims for protection from [5]–[7] of the delegate’s decision record which the applicant had provided to the Tribunal with his application for review. At these paragraphs, the delegate essentially reproduced the contents of a Statutory Declaration made out by the applicant dated 10 December 2015 and submitted to the Department the application for a protection visa as follows:
•He fears harm on return to Pakistan at the hands of Tehrik-e-Taliban (TTP), due to his involvement with a polio vaccination team working from the [placename omitted] village, from May 2013. The polio team work under the Department of Health and in collaboration wit hthe [sic] United Nations International Children’s Emergency Fund (UNICEF) and World Health Organisation (WHO).
•In October 2013 he received a letter from the TTP stating that since the program is linked with western organisations and polio vaccination is against Islamic Sharia Law, his involvement must cease as it is against Islam. He reported the threat letter to the police, who informed him other [sic] have also received these threats and do not take them seriously.
•In November 2013 he received a second letter from the TTP, stating that they must now kill him as he ignored their 1st warning. The applicant ignored the letter and continued to work with the Polio team.
•From January 2014 he received three or four telephone calls from TPP members, who threatened to kidnap and kill him. Due to these threats he began to take them seriously and became alarmed.
•In late January 2014, while in [place name omitted] (5 kilometres from his village), he noticed he was being followed by two persons on a motor bike and believed they were attempting to kidnap him; however due to the crowded Bazaar, they did not have an opportunity to do so. Although the men fired shots into the air to disperse the crowd in order to kidnap him, he escaped into the surrounding areas.
•He took a bus to Peshawar city, went to a friends [sic] [person’s name omitted] home, informed his father about the incident and remained with his friend for six weeks.
•He continued to receive phone calls from the TTP, so in March 2014 he travelled to Dubai for 3 months on a tourist visa. He changed his number while in Dubai, returning in the hope that the TTP would have forgotten about him.
•On return he remained in [place name omitted] for three weeks, but then travelled to Islamabad due to the lack of security in the area, remaining in Islamabad until his departure, apart from a further one month stay in Peshawar from October to December 2014. On the advice from his family and holding a fear for his own life, he did not return to his home village as the TTP sent a third letter (sent) June 2014) to his parents’ home.
•Despite changing his number while in Dubai, the TTP continue to call him. As a result he kept his phone switched off, unless contacting other people, unlocked [sic] himself inside his room; only exiting when it was absolutely necessary.
•As he realised Pakistan was no longer safe for him, he made arrangements to depart Pakistan on a student visa to Australia, departing on 20 April 2015.
•The Pakistani government cannot protect him from the TTP, due to the TTP’s power and connections throughout Pakistan.
•He cannot relocate as he will be located and executed due to not ceasing his polio work in 2013.
99.The delegate also noted that these claims were amended by the applicant at his protection visa interview on 11 February 2016 as follows:
•He was employed by a software company up to his departure from Pakistan.
•His family has not been targeted.
•He signed no paperwork or documents while taking part in the polio campaigns, apart from documentation showing what houses he visited, and was paid in cash once they were completed at 500 rupee per day for up to four days. The campaigns operated every 40 days, however he participated in three campaigns only; May, October and December 2013. Campaigns cease from June to October due to attacks on workers in the area.
•His father enquired the [place name omitted] Hospital following the January 2014 event in trying to locate a [person’s name omitted], the person that employ the applicant. The applicant’s father was unable to find any record of [person’s name omitted] being employed in the area or with links to the hospital.
•As the TTP have issued a warrant for his death, they will still target him, despite the time that has passed since he lasted polio work and departed Pakistan.
(b)asked EJN20 if he had any further information he wished to add and EJN20 stated he had also assisted in delivering community polio vaccination awareness seminars during his vaccination campaigns in 2013 in his local area: CB 319 at [101];
(c)pointed out to EJN20 that this was new evidence that was potentially directly relevant to EJN20’s core claims for protection and suggested to him that this claim could be interpreted as being of late invention and lacking in credibility: CB 319 at [102];
(d)warned EJN20 about the requirements under ss 5AAA and 423A of the Migration Act relating to an applicant’s responsibility to make their own case in as much as detail as possible at the first reasonable opportunity and adverse inferences that may have to be drawn in certain cases, and further indicated to EJN20 that this matter would need to be considered in detail at a later hearing, given that it had not been raised at the first reasonable opportunity: CB 319 at [103];
(e)warned EJN20 that the Delegate’s Decision had raised questions about the credibility of his claims for the Protection Visa based on an assessment of relevant country information, his evidence at an earlier Protection Visa interview and his delay in seeking protection in Australia, and that these matters “would need to be carefully considered and discussed in detail at the hearing”: CB 319–320 at [105];
(f)noted EJN20’s repeated voluntary returns to the area of the apprehended threat, and that despite these claim threats and as the child of a wealthy family personally possessed of marketable employment skills he had not made any other attempts to relocate, either within Pakistani or internationally: CB 320 at [106];
(g)asked EJN20 if he had considered seeking a visa to travel to another country besides the United Arab Emirates, in relation to which EJN20 ultimately conceded that he had not lodged any other visa applications for travel to any other countries (after initially suggesting that as the holder of a Pakistani passport his international travel options were limited): CB 320 at [107];
(h)gave EJN20 copies of ss 5AAA, 100, 101, 104, 105 and 423A of the Migration Act, and took EJN20 through these provisions briefly and reiterated that it is for an applicant for a Protection Visa to make their own case for protection in Australia at the first reasonable opportunity and in as much detail as possible: CB 320 at [109]; and
(i)indicated that EJN20 should submit any written information relevant to his Protection Visa application at least seven days prior to the Second Tribunal Hearing, to allow the Tribunal an opportunity to process and considered it appropriately: CB 320 at [109].
Second Tribunal Hearing

At the Second Tribunal Hearing the Tribunal:
(a)noted EJN20 had submitted a list of 46 website addresses relating to online news media reports of sectarian violence in Pakistan between 2013 and 2020, a list of hospitals in a particular province which stated the name of the Health Centre, and noted various issues in the Health Centre Letter including typographical errors and inconsistencies: CB 320–321 at [110]–[113];
(b)noted EJN20 had submitted a letter dated 4 March 2020 which purported to be a reference for EJN20 from a staff member on the EPI campaign (“EPI-WHO Letter”): CB 321 at [114]–[115];
(c)asked to view the email record on EJN20’s smartphone of the exchanges relating to the provision of the Health Centre Letter allegedly provided by EJN20’s brother in Pakistan. EJN20 said that he had deleted the exchanges: CB 321 at [117];
(d)indicated to EJN20 that the Tribunal had not been able to identify a doctor by the name of the person who had signed the Health Centre Letter and:
(i)noted the doctor’s name was spelled differently in the two separate instances the doctor’s name was mentioned in the Health Centre Letter: CB 321–322 at [118];
(ii)put to EJN20 that it was not credible to suggest the doctor would spell their name two different ways or for the Health Centre Letter to be issued without the error being corrected: CB 321–322 at [118]-[119];
(iii)noted that EJN20 had suggested the Tribunal could verify the authenticity of the Health Centre Letter by contacting the Health Centre directly: CB 322 at [119];
(iv)indicated to EJN20 that the Tribunal had made reasonable attempts to independently verify the identity of the relevant doctor using official websites, but that there was no online record that referred to any such doctor in connection with the Health Centre, and noted that EJN20’s response was “[h]e is still there. He’s still in the hospital. In the morning he is in the hospital and in the afternoon he runs his own clinic in [place name omitted]”: CB 322 at [119];
(v)put to EJN20 that internal inconsistencies within the Health Centre Letter, and EJN20’s lack of any personal knowledge of its origins, and the inability of the Tribunal to verify basic facts in the document from publicly available online sources, meant that the Health Centre Letter did not appear to be authentic all: CB 322 at [120], and noted that EJN20 could make further submissions on this issue;
(vi)noted that EJN20’s responses (in a written submission dated 25 March 2020) to the issues raised by the Tribunal at the First Tribunal Hearing included documents in PDF format, but that because these were PDFs the Tribunal had no way of assessing their credibility as a true record of an authentic communication, or the circumstances of their origins, but noted that the confirmation that EJN20 wished to rely on as verification of the Health Centre Letter was littered with inconsistencies in spelling and references and included indecipherable signatures: CB 322-323 at [122]–[125]
(vii)found that its preliminary observations about the Health Centre Letter were reasonable in the circumstances, were appropriately put to EJN20, and that EJN20 had subsequently taken advantage of the Tribunal’s invitation to make additional written submissions, but had still not adequately addressed the Tribunal’s reasonable concerns about the authenticity of the Health Centre Letter: CB 323 at [126]; and
(viii)found that any suggestion that the same person would spell the same doctor’s name two different ways in the Health Centre Letter on the same day, and that the doctor would authorise it without making some form of correction, was not credible: CB 323 at [127];
(e)asked EJN20 how he had come into possession of the EPI-WHO Letter, and when EJN20 stated he had no personal knowledge of how it had been obtained and that he had relied on his brother to obtain the EPI-WHO Letter, found the EPI-WHO Letter’s origins to be uncertain and not able to be verified by reference to the submission made by EJN20, and that the signatures on the EPI-WHO Letter were indecipherable: CB 323 at [128]–[129];
(f)noted the WHO logograph used on the EPI-WHO Letter was no longer currently in use by the WHO and that contact information on the EPI-WHO Letter was not an official WHO email address, suggesting that it was not obtained using the official WHO process for issuing employment references, to which EJN20 said he had telephoned the Islamabad office of the WHO to find out how to obtain the employment reference: CB 323 – 324 at [130];
(g)put to EJN20 its concerns that the use of a non-domain specific email address (“Alleged Email Address”) in relation to an important federally supported immunisation program, did not appear on its face to be necessary or appropriate, and together with the fact that, as at 9 March 2020, the Alleged Email Address was listed online as being “available” and not then in use by any person or organisation, undermined the credibility of the EPI-WHO Letter: CB 324 at [131]:
(h)asked EJN20 how his casual work for a polio vaccination program was consistent with his employment certificate from a software development business from Peshawar for the entire time that he claimed to be an occasional polio program worker, to which EJN20 responded that his software development duties could be accomplished remotely from the office and that he would travel home occasionally and work there. The Tribunal put it to EJN20 that this was not credible given that he had given evidence earlier in the Second Tribunal Hearing that his home village had poor telephone coverage and that internet access there was “negligible”: CB 324 at [132];
(i)recorded that EJN20 also said it was not important for him to attend his office and that following his return from Dubai in 2014, he was effectively in hiding, which was evidence the Tribunal did not accept given it did not answer the question put to him about the apparent illogicality of his pursuing software development work in a remote region with poor telephone and intermittent internet access: CB 324 at [133];
(j)noted EJN20’s evidence concerning his work experience, and found that it was not credible that an authentic employment reference requested on 5 March 2020 would be issued with a date of 4 March 2020, or that despite EJN20 saying that he had contacted the relevant WHO office personally that the EPI-WHO Letter would then be sent to EJN20 via a WhatsApp message from his brother, and put to him that documents intended to serve as his employment references were not credible and invited EJN20 to make subsequent written submissions on this issue: CB 324–325 at [135];
(k)noted that in response to a suggestion from EJN20 that the Tribunal itself contact the local office of EPI, that it had indicated to EJN20 at the Second Tribunal Hearing that the Tribunal had no obligation to make, or assist an applicant in making, their case for protection in Australia, noting that this principle is established in the relevant case law, to which it referred: CB 325 at [137] at fn 7, and found that it had made reasonable enquiries to establish if it could independently verify the authenticity of the EPI-WHO Letter: CB 325 at [137];
(l)took EJN20 to his email message which contained web links (see [8(a)] above) and noted it had invited EJN20 to make written submissions on how the web links assisted him with his Protection Visa application but that he had not made further written submissions on this matter. Accordingly, the Tribunal found it was unable to determine what particular relevance, if any, this material had to EJN20’s specific circumstances: CB 325 at [138]–[139];
(m)regarding the three threats EJN20 said he had received from the TTP, noted EJN20’s claims that the Pakistani police had told him to ignore the threats, and that this was because such threat letters were “a common thing”, but observed that EJN20 had not engaged meaningfully with the concern raised about his conduct by both the Delegate and the Tribunal, namely why EJN20 did not take reasonable steps to avail himself of any form of local protection in Pakistan before departing for Australia in response to the alleged repeated and escalating threats he claimed to have experienced in Pakistan from the TTP: CB 326 at [140]–[144];
(n)found that that EJN20’s written submissions did not adequately explain his failure to avail himself of any form of local protection in Pakistan, and in making this finding the Tribunal had regard to EJN20’s father being a respected community leader in his village with access to reporting options including but not limited to local police: CB 326 at [144];
(o)noted that the EJN20 had alleged receiving numerous threatening telephone calls from the TTP, had changed his telephone number in March 2014 when he travelled to Dubai for three months, but had not taken any reasonable steps, to anonymise his telephone number in Pakistan when he changed it, and that this was not consistent with his claims to fear harm in Pakistan by reason of the alleged threatening telephone calls from the TTP, or any other person or organisation: CB 327 at [146]-[148];
(p)found that the vague account given by EJN20 of the incident in the bazaar (a drive-by shooting incident from the back of a motorbike in a crowded bazaar) and the lack of any reporting of such a violent incident to any relevant authority at the time suggested that EJN20’s account of these events lacks credibility and should not be accepted: CB 327 at [149];
(q)noted the circumstances of EJN20’s family in Dubai and his evidence about his activities in Dubai, which had “changed significantly” from the First to Second Tribunal Hearing: CB 327–328 at [150]–[152];
(r)noted that EJN20’s repeated returns to his home village throughout the relevant period and his failure to explore any relocation alternatives either within Pakistan or Dubai was behaviour not consistent with a well-founded fear of harm in Pakistan from any person for any reason: CB 328 at [153]; and
(s)found that EJN20’s evidence concerning his travel to Dubai in 2014 was variable, inconsistent and equivocal, and did not address the reasonable credibility concerns put to him about the circumstances surrounding his departure from Pakistan and his subsequent voluntary return from Dubai raised by the Delegate and the Tribunal. The Tribunal therefore found that EJN20’s travel history prior to his arrival in Australia was not consistent with a genuinely subjectively held well-founded fear of harm in Pakistan prior to that time: CB 329 at [156];
(t)observed that the Tribunal was required to have regard to relevant Department of Foreign Affairs and Trade (“DFAT”) country information, and cited a DFAT country information report concerning Pakistan dated 2019 which indicated that document fraud was widespread in Pakistan for documentation not issued by a competent central authority, and that there was a relative ease in Pakistan in acquiring fraudulently obtained genuine documents, which were preferred over counterfeit documents as they were more difficult to detect, and noted the classes of documents historically found to be fraudulent in Pakistan, and that amongst those were references: CB 329 at [157];
(u)indicated that it had put EJN20 on notice of the DFAT country information relating to the prevalence of fraudulent documents in Pakistan, and observed that because the documents provided to the Tribunal by EJN20 on 6 March 2020 related to core aspects of his claims, that the Tribunal would have expected those documents to have been provided to the Delegate, or given that the Delegate’s Decision turned upon credibility concerns, that the documents would have been provided for the purposes of the Tribunal review application: CB 329-330 at [159], and went on, having regard to s 423A of the Migration Act to find that EJN20 had not provided a reasonable explanation for the late provision of the evidence provided in his 6 March 2020 email, and the Tribunal accordingly drew the statutory inference adverse to his credibility required by s 423A of the Migration Act: CB 330 at [161].
Third Tribunal Hearing
At the Third Tribunal Hearing the Tribunal having reviewed all of the evidence, including EJN20’s oral evidence, concluded that EJN20 had not undertaken polio aid work: CB 334 at [179] and 335-336 at [186], and that the documents he had submitted in support of that claim were not authentic: CB 325 at [137], 333 at [174] and 334 at [179], and reached those conclusions having regard to essentially the same matters as had been set out at length in relation to the Second Tribunal Hearing, and which were then reiterated in relation to the Third Tribunal Hearing.
Conclusions
The Tribunal:
(a)concluded that EJN20’s claims to have received threats from the TTP on the basis of his polio aid work were not credible, summarising its views at CB 335-336 at [186]-[187] as follows:
186.As discussed above, the Tribunal has found that the applicant did not travel to [place name omitted] during the period that he was employed as a junior software development worker in his first full-time job out of college in [place name omitted] to work on a casual basis on the polio eradication program on 14 days between May and December 2013 (an ad-hoc seminar leader about the vaccination program) in the [place name omitted] region. The applicant’s supporting evidence (consisting as it does, of three purported TTP threat letters that have been accorded little weight by the Tribunal; a number of documents that the Tribunal has found are not authentic; and, evidence at the hearing that the Tribunal has found to lack credibility), does not support a contrary view about this core aspect of the applicant’s claim to hold a well-founded fear of persecution in Pakistan now or in the reasonably foreseeable future. On the other hand, the applicant’s failure to report all but the first of these threats (and even then not pressing the lodgement of an FIR); his repeated returns to his home village (including from Dubai); his failure to take reasonable precautions to anonymise his telephone number at any time; and his failure to meaningfully explore any relocation alternatives in either Pakistan or Dubai before applying for a visa in Australia are all entirely consistent with the suggestion that the applicant did not subjectively hold a well-founded fear of harm in Pakistan from any person, for any reason. Accordingly, the Tribunal finds that the applicant was not engaged as a casual worker in the polio eradication program for 14 days between May and December 2013 (or ad-hoc seminar leader about the vaccination program) in the [place name omitted] region.
187. It follows that the Tribunal finds that the applicant’s claims to have received threats from the TTP or any person at any time for the essential and significant reason of his being a casual worker in the polio eradication program for 14 days between May and December 2013 (or ad-hoc seminar leader about the vaccination program) in the [place name omitted] region or for any other reason are not credible.
(b)considered the threat of violence arising from the general security environment in Pakistan, the threat of harm to EJN20 therefrom, but concluded that any claims so made were not made out due to a lack of particularity concerning that alleged violence: CB 336-342 at [189]–[205];
(c)found it was not satisfied that EJN20 was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act: CB 342 at [206];
(d)having concluded that EJN20 did not meet the refugee criterion in s 36(2)(a) of the Migration Act, considered the alternative criterion in s 36(2)(aa) of the Migration Act, and having regard to its anterior findings relating to EJN20’s core claims for protection lacking credibility in important respects, was not satisfied that EJN20 is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act: CB 342 at [207]; and
(e)affirmed the Delegate’s Decision to refuse EJN20 the Protection Visa.
JUDICIAL REVIEW APPLICATION
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
An error may constitute a jurisdictional error where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. An instance where the Tribunal has made findings that are legally illogical, irrational or otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 (“Hossain”) the High Court observed that, other than in exceptional circumstances, relief will generally require the error to be one that was “material” in the sense that it deprived an applicant of the possibility of a successful outcome: Hossain at [30] per Kiefel CJ, Gageler and Keane JJ and [72] per Edeleman J.
The onus is upon EJN20 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424. In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, the High Court said at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (footnotes omitted) that:
As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.

For reasons that will hopefully become obvious, it is important in this matter to observe and highlight that it is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to actually determine EJN20’s Protection Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court must be acutely mindful that the dichotomy between merits review and judicial review is at the heart of Australian administrative law and the boundary between the two is vigorously policed: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J; Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ. Fact-finding is a matter for the Tribunal: as part of its fact-finding function it is for the Tribunal to identify the material it finds relevant to its reasoning and to give that material the weight it considers appropriate: Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (“Tran”) at [5]-[7] per RD Nicholson J.
The Tribunal was not required to accept uncritically any and all claims made by EJN20: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 48 ALD 481; CLR at 596 per Kirby J, or possess rebutting evidence before finding that the Applicant’s assertions were not established: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.
In the material before it, the Tribunal was not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, nor is the Tribunal required to expressly refer to each and every individual piece of evidence provided by an applicant or make findings regarding each of those pieces of evidence: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ.
The Court is also cognisant that where a party is self-represented the Court must endeavour to remain independently alert to the possibility of jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
EJN20’s Hearing Affidavit and Submissions
Pursuant to orders made by the Court on 29 October 2020 and 28 July 2021 EJN20 filed a document headed “Submissions”, but which is, apart from that heading, in the form of an affidavit (“EJN20’s Hearing Affidavit”), and which contains a mixture of evidence and submissions, dealing, in summary, with the following matters:
(a)the circumstances leading to EJN20 applying for the Protection Visa;
(b)a summary of the reasons why EJN20 believes the Department and the Tribunal refused his Protection Visa application;
(c)EJN20’s Recusal Request;
(d)EJN20’s responses to the “points of conflict” in the Tribunal Decision; AND
(e)the remedy EJN20 is seeking from the Court.
EJN20’s Hearing Affidavit also annexed the following documents:
(a)a screenshot of an email from the Tribunal to EJN20 dated 24 July 2020 stating that the Tribunal was not requesting further information from EJN20: page 17 (see also [3(s)] above);
(b)an unlabelled Google Maps screenshot of an area in Pakistan: page 18;
(c)a list of hospitals in the [place name omitted] province taken from a Pakistani Government website: page 20;
(d)copies of Confirmations of Enrolment in a Master of Science degree and in a English Language Bridging Course, both at Curtin University of Technology: pages 21-22;
(e)a copy of EJN20’s passport showing his personal details and entry stamps upon arrival to Dubai: page 23;
(f)a list of medical professionals employed at hospitals in [place name omitted] with the name of the doctor named in the Health Centre Letter highlighted: page 23;
(g)a screenshot of an email from an administration officer at the Health Department in [area name omitted] to EJN20 dated 15 December 2020 stating that the doctor named in the Health Centre Letter worked at the Health Department in [area name omitted]: page 24;
(h)various travel stamps and a stamp presumably from the EPI: page 25;
(i)two screenshots of website URLs that can be purchased: page 26; and
(j)a screenshot of Directorate General Health Services regarding “free Corona testing for citizens of [area name omitted]” and the “Expanded Program on Immunization”: page 27.
OBJECTIONS TO EJN20’S HEARING AFFIDAVIT
The Minister objected to much of the content of EJN20’s Hearing Affidavit on the following bases:
(a)to factual matters relevant to his claims for protection at [1]-[10], [29]-[31], [34]-[36], [39]-[43] and [47]-[48], on the basis that it is not relevant to the Judicial Review Application;
(b)to factual matters concerning legal advice he received relating to the recusal request (see [12]-[15]) on the basis that it is not relevant to any of the grounds for judicial review, and also on the basis that it is hearsay;
(c)other factual matters not relevant to the grounds of review, or factual assertions as to what occurred during the Tribunal hearings which are not corroborated by a transcript; and
(d)to the annexed documentary evidence, being the documents described above at [22].
CONSIDERATION OF THE OBJECTIONS
Before considering the objections in more detail it is necessary to reiterate that this Court’s jurisdiction in relation to the Judicial Review Application is to determine whether or not the Tribunal Decision is affected by jurisdictional error, not to review or rehear the merits review application made to the Tribunal: see [17] above. It is also appropriate to note that evidence which is not relevant is not admissible: Evidence Act1995 (Cth) (“Evidence Act”), s 56(2).
Relevance
[1]-[10]
EJN20’s Hearing Affidavit at [1]-[10] deals with the following matters:
(a)the incidence of polio in Pakistan and Afghanistan;
(b)the targeting of polio workers by militants in Pakistan;
(c)EJN20’s involvement in a polio eradication campaign in his home town in Pakistan;
(d)his move to Peshawar after the incident in the bazaar in his home town;
(e)his visit to Dubai from April to June 2014;
(f)his return to Pakistan, specifically Islamabad, with occasional visits to Peshawar;
(g)his arrival in Australia in April 2015 on a Student Visa; and
(h)his lodgement of the Protection Visa application in July 2015.
None of the above matters are relevant to whether the Tribunal Decision is affected by jurisdictional error, and they are therefore inadmissible: Evidence Act, s 56(2), and [1]-[10] of EJN20’s Hearing Affidavit will be struck out.
[29]-[31]
EJN20’s Hearing Affidavit at [29]-[31] deals with the following matters:
(a)general comments concerning the nature of a Pakistani passport and the fact that Australia would not have granted EJN20 a Student Visa if he were not an eligible student;
(b)how his studies were affected by flashbacks concerning the incident in the bazaar and reading news articles concerning the targeting of polio workers, and his research concerning Protection Visa options; and
(c)his plans concerning his studies and enrolment university, and how that was affected by the refusal of his Protection Visa application by the Delegate.
None of the above matters are relevant to whether the Tribunal Decision is affected by jurisdictional error, and they are therefore inadmissible: Evidence Act, s 56(2), and [29]-[31] of EJN20’s Hearing Affidavit will be struck out.
[34]-[36]
EJN20’s Hearing Affidavit at [34]-[36] deals with spelling mistakes in the names of places and persons, and by reference to alleged errors in the spelling of EJN20’s name in Curtin University enrolment documents and to an alleged difference in the spelling of EJN20’s father’s name as between his father’s and his own passports, then makes a submission that these are matters of human error and that it was not fair that the Tribunal Decision was made “without considering these facts”: at [35].
It is not the role of this Court to deal with factual errors of this type. The question of the names of places and persons, and their spelling, is a factual matter for determination by the Tribunal, and not a matter for overzealous examination by the Court on judicial review: see [17] above. To the extent that EJN20 argues this matter by reference to documents which were not before the Tribunal, namely his Curtin University enrolment documents and a copy of his father’s passport, those are not documents that were relevant to the Tribunal’s consideration of the issues before it. Nor are they documents that the Court can have regard to in relation to the judicial review application, both because they relate to a matter (spelling) which is a factual matter for the Tribunal, and because the documents, which predate the Tribunal hearings, were not put before the Tribunal, and there is no explanation for that omission. These matters are therefore not relevant to whether the Tribunal Decision is affected by jurisdictional error, and they are therefore inadmissible: Evidence Act, s 56(2), and [34]-[36] of EJN20’s Hearing Affidavit will be struck out.
[39]-[43]
EJN20’s Hearing Affidavit at [39]–[43] deals with two separate issues, namely:
(a)the availability of internet domain and email names: at [39]-[41]; and
(b)internet connectivity in the places at which EJN20 was working in Pakistan: at [42]-[43].
In relation to the issue of the availability of domain and email names EJN20 refers to his investigations subsequent to the Tribunal hearings in relation to the availability of domain and email names, and seeks to have the Court “disregard” the Tribunal’s factual finding concerning the availability of domain and email names on the basis of his research and his assertions as to what that research means in terms of the availability of domain and email names in Pakistan.
In relation to internet connectivity in the places at which EJN20 was working in Pakistan he makes factual assertions as to landline connectivity in his home village, and as to the use of smart phones, websites and other technologies for business purposes in Pakistan. Essentially, he appears to reiterate what was put by him to the Tribunal, and seeks to have the Court determine the mater differently to the Tribunal. Once again these are entirely factual matters which are part of the Tribunal’s fact-finding role. It is not for the Court to re-determine matters, particularly factual matters, already determined by the Tribunal on the basis of the same factual material, and nor is it for the Court to re-determine matters by having regard to new material and new arguments which were not put before the Tribunal. An error of fact does not necessarily give rise to jurisdictional error: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1 at [137] per Gummow and Hayne JJ; NADR v Minister for Immigration & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ.
These matters are therefore not relevant to whether the Tribunal Decision is affected by jurisdictional error, and they are therefore inadmissible: Evidence Act, s 56(2), and [39]-[43] of EJN20’s Hearing Affidavit will therefore be struck out.
[47]-[48]
EJN20’s Hearing Affidavit:
(a)at [47] speculates as to what might happen to him if returned to Pakistan and says that he wishes to pursue education and be a productive member of society; and
(b)at [48] says that he was “feeling down” at the time of writing, and was “suffering from severe mental depression”, and apologised for any wrongful or disrespectful comments made therein.
Neither of these paragraphs assert jurisdictional error in the Tribunal Decision, and neither set out facts relevant to the establishment of any jurisdictional error in the Tribunal Decision, and they are therefore irrelevant and inadmissible: Evidence Act, s 56(2), and [47]-[48] of EJN20’s Hearing Affidavit will therefore be struck out.
Relevance and hearsay - [12]–[15]
EJN20’s Hearing Affidavit at [12]-[15] sets out no more than the discussions and process involved in EJN20’s consultations with his then lawyer, seemingly after the First Tribunal Hearing, leading to the making of the Recusal Request, which is said to have been made accidentally by the forwarding of an unedited submission to the Tribunal. It also provides the mobile telephone number of the lawyer then acting for EJN20 and invites the Court to confirm the details with the lawyer.
Nothing in EJN20’s Hearing Affidavit at [12]-[15] goes to the issue of jurisdictional error in the Tribunal Decision, and as such these paragraphs are irrelevant and inadmissible: Evidence Act, s 56(2), and [12]-[15] of EJN20’s Hearing Affidavit will therefore be struck out.
Other factual material or assertions
The Minister also objects to other factual matters not relevant to the grounds of review, or factual assertions as to what occurred during the Tribunal hearings which are not corroborated by a transcript.
The Minister’s submissions, both written and oral, did not descend to particulars in respect to this objection, but rather adopted a broader approach, which was perhaps reflective of the broad and discursive nature of EJN20’s Hearing Affidavit.
It is convenient to note that the paragraphs which have not been struck out as a consequence of the objections ruled upon above are as follows: [11], [16]–[28], [32]–[33], [37]–[38], [44]–[46] and [49], and to deal with each of these paragraphs in turn.
[11]
EJN20’s Hearing Affidavit at [11] is emblematic of the problems with the admissibility of EJN20’s Hearing Affidavit. It provides as follows (reproduced unaltered):
My protection application was rejected by the Department and affirmed by the AAT on the basis that;
I am not a credible witness and reliable historian.
The evidence presented is unsatisfactory, illogical, and inconsistent. I will, however, prove myself to be a credible witness and reliable historian by producing satisfactory evidence issued by the government. This is the crux of the claim of the submission.
EJN20 thus declares that he is setting out to do exactly that which is impermissible upon the Judicial Review Application, namely, to have this Court engage in merits review rather than judicial review of the Tribunal Decision, contrary to long-standing authority cited above: see [17] above.
Nothing in EJN20’s Hearing Affidavit at [11] goes to the issue of jurisdictional error in the Tribunal Decision, and as such it is irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
[16]
EJN20’s Hearing Affidavit at [16] is preceded by a heading which says (original emphasis):
Response to the point of conflicts in the decision:
which is plainly a reference to alleged points of conflict in the Tribunal Decision.
EJN20’s Hearing Affidavit at [16] sets out the content of the Tribunal Decision at CB 329 at [157] and 329-330 at [159] which deals with the question of an adverse inference being drawn by reason of the late provision of documents: Migration Act, s 423A. As that is a matter the subject of particularisation in ground 2 (albeit not by reference to this particular paragraph) EJN20’s Hearing Affidavit at [16] will not be struck out as it is relevant to that issue.
[17]-[18]
EJN20’s Hearing Affidavit at [17]-[18] refers to the Tribunal’s view “that it is easy to obtain fraudulent documents” in Pakistan (as to which see CB 329-330 at [159]), and asserts that the documents provided to the Tribunal were true and correct to the best of EJN20’s knowledge and that he disagrees with the Tribunal’s finding that the documents are fraudulent. The expression of disagreement with a finding of the Tribunal is not, of itself, an assertion of jurisdictional error. At best what EJN20 seeks to have the Court do is to impermissibly re-determine a matter of fact as to the authenticity of the relevant documents. The Court notes that even were it permitted to do so, EJN20’s bare assertions, do not provide a proper evidentiary basis for determining the matter. There is nothing otherwise in these paragraphs which points to any jurisdictional error in the Tribunal Decision. As such these paragraphs are irrelevant and inadmissible: Evidence Act, s 56(2), and [17]-[18] of EJN20’s Hearing Affidavit will therefore be struck out.
[19]-[24]
Immediately before EJN20’s Hearing Affidavit at [19] CB 332 at [169] from the Tribunal Decision is set out as follows:
At the third hearing, the applicant was advised that he could make such further written submissions as he wished, prior to the Tribunal publishing its decision on his review application. As at the date of this decision, no further submissions were made by the applicant in respect of this document or the Tribunal’s concerns relating to its authenticity.
At [19]–[23] of EJN20’s Hearing Affidavit EJN20 says that:
(a)that at the Third Tribunal Hearing, EJN20 was advised that he could make further submissions, and he remembered the Tribunal mentioning something about submissions;
(b)in order to make further submissions, EJN20 would first need the audio recording of the Third Tribunal Hearing;
(c)on 22 July 2020 he requested the audio recording of the Third Tribunal Hearing;
(d)on 24 July 2020, after having received no response from the Tribunal, EJN20 contacted the Tribunal but the Tribunal Officer he spoke to could not find anything on his file regarding submissions and advised EJN20 to contact the Tribunal’s Perth Registry;
(e)EJN20 emailed the Tribunal’s Perth Registry and received an email response on 24 July 2020 stating the Tribunal had not requested any further information from him: see also [3(y)] and [22(a)] above, and that:
It is entirely up to you if you wish to provide further information. If you wish to make further submissions, you have until 30 July 2020 to do so.
(f)after receiving the Tribunal’s email response EJN20 assumed he must not have heard the Tribunal correctly and that if the Tribunal did not require anything then the Tribunal must not have mentioned the matter during the Third Tribunal Hearing; and
(g)on 29 July 2020 EJN20 received the Third Tribunal Hearing audio recording, and upon listening to it, the Tribunal had mentioned that EJN20 could make further submissions. EJN20 says he was confused and surprised at the same time, but as the next day was the due date for the submissions (according to the email response), being 30 July 2020, it was too late to make a further submission.
In light of the factual situation alleged above, EJN20 asserts that the Tribunal had given him a conflicting response to his request and he believes he was not offered procedural fairness by not being allowed enough time to make submissions: EJN20’s Hearing Affidavit at [24].
The matters referred to in EJN20’s Hearing Affidavit at [19]-[24] are relevant to particular 4 of ground 2, and ought not to therefore be struck out (notwithstanding that [24] is technically a submission rather than an assertion of fact).
[25]-[26]

Immediately before EJN20’s Hearing Affidavit at [25] CB 298 at [29] from the Tribunal Decision is set out as follows:
It is noted that my 26 June 2020 invitation to comment on the apparent inconsistency relating to the doctor’s name that formed the substance of questioning in the foregoing passage was not addressed by the applicant in his subsequent 13 July 2020 response in any way.
At [25]–[26] of EJN20’s Hearing Affidavit EJN20 says that:
(a)at [25] in relation to the doctor’s name, that he had (subsequent to the Tribunal Decision) contacted the Health Department in Pakistan and they had confirmed that the doctor is appointed to the local Rural Health Service and is currently working in the same hospital; and
(b)at [26] that during the Third Tribunal Hearing, the interpreter misunderstood him and when he tried to correct him, the Tribunal interrupted him by saying that EJN20 was not there to correct the interpreter’s English and that if EJN20 could speak better than the interpreter, then it was better that EJN20 speak himself. EJN20 maintains he was not correcting the interpreter’s English but correcting the interpreter as the interpreter got wrong what EJN20 wanted to say.
The fact that EJN20 has seemingly undertaken further investigations into the doctor’s name is irrelevant to the question of whether there is jurisdictional error in the Tribunal Decision, as it is not for this Court to consider that factual issue and determine it, and particularly so on the basis of information which was not before the Tribunal. To do so would be to impermissibly determine a matter of fact which is the function of the Tribunal on merits review: see [17] above.
As such EJN20’s Hearing Affidavit at [25] is irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
EJN20’s Hearing Affidavit at [26] raises the possibility of interpreter error at the Third Tribunal Hearing. Interpreter error in a hearing before the Tribunal may be a matter which constitutes jurisdictional error where, upon evaluation, the standard of interpretation may have affected the outcome of the hearing: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [9] and [24] per Allsop CJ and [66] per Robertson J. EJN20’s Hearing Affidavit at [26] will therefore not be struck out.
[27]-[28] and [45]
EJN20’s Hearing Affidavit at [27]-[28] and [45] simply takes issue with the Tribunal’s interpretation of EJN20’s travel to Dubai and return to Pakistan and whether, as a matter of fact, EJN20 did, or was able to, relocate internally within Pakistan. There is no discernible jurisdictional error raised by the subject matter of EJN20’s Hearing Affidavit at [27]-[28] and [45] and it follows that these paragraphs are irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
[32], [38] and [44]
EJN20’s Hearing Affidavit at [32], [38] and [44] deals with the provenance of documents referred to in the Tribunal Decision and purports to explain how the letter was obtained from the doctor concerned by EJN20’s brother, and give details of further enquiries made by EJN20 after the Tribunal Decision had been published.. Once again, the provenance of documents is a matter of fact, dealt with by the Tribunal: CB 322 at [120] and [124] on the basis of information before it at the time of the Tribunal Decision, which EJN20 is now endeavouring to impermissibly re-argue by putting new information before the Court as to the alleged provenance of the Health Centre Letter as a result of enquiries made after the Tribunal Decision was published. It follows that EJN20’s Hearing Affidavit at [32], [38] and [44] is irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
[33] and [37]
EJN20’s Hearing Affidavit at [33] and [37] deals with the employment and registration details of the doctor, and gives details of a letter said to be written by the Health Department confirming the doctor’s employment, in response to an enquiry made by EJN20 after the publication of the Tribunal Decision. Once again, these are matters of fact, dealt with by the Tribunal: CB 332 at [170] on the basis of information before it at the time of the Tribunal Decision, which EJN20 is endeavouring to impermissibly re-argue by putting new information before the Court as to the alleged employment and registration of the doctor concerned as a result of enquiries made after the Tribunal Decision was published. It follows that EJN20’s Hearing Affidavit at [33] and [37] are irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
[46]
EJN20’s Hearing Affidavit at [46] is argumentative, expressing disagreement with the Tribunal Decision, and is irrelevant to whether the Tribunal Decision is affected by jurisdictional error, and will therefore be struck out: Evidence Act, s 56(2).
[49]
EJN20’s Hearing Affidavit at [49] is not an asserted fact but a plea for a judgment in EJN20’s favour, together with an argumentative assertion about the nature of the Tribunal Decision. These matters are not relevant to whether there was jurisdictional error in the Tribunal Decision and EJN20’s Hearing Affidavit at [49] is irrelevant and inadmissible and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
Annexed documents
The list of documents annexed to EJN20’s Hearing Affidavit are set out at [22] above. Of the documents only the Tribunal email of 24 July 2020 is relevant, it being relevant to particular 4 of ground 2. Otherwise the documents relate to maters of fact previously considered by the Tribunal, and to further inquiries made by EJN20 following the Tribunal Decision, and relate to matters that the Court has found to be irrelevant and inadmissible. It follows that save for the Tribunal email of 24 July 2020 that the documents are irrelevant and inadmissible: Evidence Act, s 56(2), and will therefore be struck out.
Objections – summary of outcome
In summary, the outcome of the Minister’s objections is as follows:
(a)[1]-[15], [17]-[18], [25] and [27]-[49] have been struck out of EJN20’s Hearing Affidavit;
(b)[16], [19]-[24] and [26] have not been struck out of EJN20’s Hearing Affidavit; and
(c)all of the documents annexed to EJN20’s Hearing Affidavit have been struck out, save for Tribunal email of 24 July 2020.
Although the Court has struck out various paragraphs (and documents) of EJN20’s Hearing Affidavit the Court has, to the extent that those paragraphs might constitute submissions, considered them as such in relation to the otherwise admissible material before the Court.
Further possible ground arising
EJN20’s Hearing Affidavit gives rise to a possible further ground of jurisdictional error in the Tribunal Decision, which the Court must consider: MZAIB at [100] per Mortimer J; Ludgero at [26] per Judge Lucev, namely, the possibility of interpreter error at the Third Tribunal Hearing: see EJN20’s Hearing Affidavit at [26] discussed at [56] above.
CONSIDERATION
Ground 1
Ground 1 of the Judicial Review Application is as follows, unaltered:
The Tribunal failed to discharge its duty to review under section 348 of the Migration Act due to numerous errors it made in finding EJN20 not credible.
Particulars
1.At [131] the Tribunal incorrectly concluded that the email [email protected] was not currently in use and that it was listed online as being 'available' by wrongly searching the availability of the email address in which is meant for searching of availability of website domain names.
2.The Tribunal also without any basis assumed that organisations in Pakistan will use domain name for its email address.
3.At [135] the Tribunal misunderstood the evidence given by the client with regards to a letter from EPI dated 4 Mar 2020 and the applicant contacting the WHO on 5 Mar 2020. The Tribunal concluded that the letter of 4 March 2020 is not authentic because it came into being before the Applicant contacting the WHO ([137]). The applicant's evidence was that after receiving the EPI letter dated 4 Mar 2020 and after hearing from the brother that the EPI does not have the salary payment records, he then contacted WHO in Islamabad seeking record of salary paid to the applicant (see Tribunal's findings at [136]) and the transcript at page 22 and 23 of the AAT's decision. i.e., he was seeking records of salary payment as the Tribunal indicated on its previous hearing date that WHO will have full records of payments
Ground 1 alleges that the Tribunal’s adverse finding as to the credibility and authenticity of the EPI-WHO Letter bearing the date 4 March 2020 under the header “Office of the District Coordinjtor [sic] EPI [place name omitted] at [place name omitted], Phone & Fax [number omitted] Email: [name omitted]@yahoo.com” (see CB 323-324 at [128]-[131]) was affected by the several particularised errors.
The EPI-WHO Letter at CB 239 reads as follows:
TO WHOM IT MAY CONCERN
Certified that [EJN20] [place names omitted] has performed his duties, as a Polio Worker (voluntarily) In Polio Campaigns at [place name deleted], Pakistan from April 2013 to Jan 2014; He lias been a hard working, intelligent and sincere Worker. He had good relationships with staff and community.
I am confident that he will prove himself an asset for the better service of society.
I wish him success in his future endeavors.
Particular 1 alleges that the Tribunal wrongly relied on a search for the Alleged Email Address on the website when that internet site is meant for searching the availability of website domain names. The Tribunal Decision at CB 324 at [131] provides that:
I put to the applicant my concerns about the email address which appears on this letter as a contact point. The use of a non-domain-specific email address for such an important, federally supported immunisation program does not appear, on its face, to be either necessary or appropriate. This together with the fact that, as at 9 March 2020, the email address ‘[name omitted]@yahoo.com’ was listed online as being ‘available’ and not currently in use by any person or organisation, further undermines the credibility of the document as put to the applicant at the hearing.
The only relevant evidence before the Court is that in the Tribunal Decision where the Tribunal expressly says that the Alleged Email Address was listed as available. It can be inferred therefrom that the Tribunal made its own enquiries as to availability. There is otherwise no evidence before the Court as to how the website works or whether it can be used to ascertain whether a specific email address is available, and EJN20’s assertions concerning this website at EJN20’s Hearing Affidavit at [39]-[41] are inadmissible: see [34] above. There is no evidentiary foundation for particular 1, and this particular cannot therefore be made out.
In relation to particular 2 the Tribunal found that the use of a non-domain-specific email address for an important and federally supported polio immunisation program did not appear, on its face, to be either necessary or appropriate: CB 324 at [131]. The Tribunal had already found that the Alleged Email Address was not an official WHO contact email address: CB 323-324 at [130]. The findings made by the Tribunal were open to it and did not involve absurd assumptions or speculation, but were findings buttressed by common sense and the absence of a specific formal email address in circumstances where it could be expected that one would be used. Otherwise, there is no evidence to support particular 2, and it is not made out.
In particular 3 EJN20 contends that the Tribunal misunderstood his evidence in relation to the circumstances surrounding the obtaining of the EPI-WHO Letter and the timing and purpose for EJN20’s purported call to WHO on 5 March 2020. Fact finding is a matter for the Tribunal: Tran at [5]-[7] per RD Nicholson J. Particular 3 is no more than a plea for impermissible merits review.
The only record of the evidence given by EJN20 at the three Tribunal hearings is the transcript of the Second Tribunal Hearing on 9 March 2020: CB 183-228. The evidence of EJN20 about the EPI-WHO Letter at the Second Tribunal Hearing is at pages 6-7 and 42-43 of the transcript: CB 188-189 and CB 224-225. There is no transcript in evidence of the First or Third Tribunal, and without that evidence, it is extremely difficult for EJN20 to discharge his onus of establishing that the Tribunal has not accurately recorded his evidence on this issue, as, in the absence of a transcript, audio or another reliable record of those other Tribunal hearings the best evidence of what occurred at them is the Tribunal Decision: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration & Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
The onus on EJN20 to establish that the Tribunal has not accurately recorded his evidence on this issue cannot in the Court’s view be established where:
(a)EJN20’s response to the invitation to identify portions of the Second Tribunal Hearing from 9 March 2020 where he says he found the Tribunal difficult to understand included reference to the EPI-WHO Letter: CB 249-250;
(b)EJN20’s 13 July 2020 submissions effectively concede that the Tribunal had repeatedly raised concerns about the authenticity of EJN20’s documentary evidence: CB 281-282; and
(c)the Tribunal specifically put to EJN20 at the Second Tribunal Hearing its concerns about the EPI-WHO Letter, and in particular, the Alleged Email Address and the issues in relation to the domain name: CB 323-324 at [130]-[131]).
The conclusion that the EPI-WHO Letter was not authentic was based on a number of findings by the Tribunal, most of which were unrelated to each other, and which included the following:
(a)that the WHO logo appearing on the EPI-WHO Letter was not the one in current use by the WHO: CB 323-324 at [130];
(b)that the use of the WHO logo was non-compliant with the WHO’s publication policy: CB 323-324 at [130];
(c)that the Alleged Email Address on EPI-WHO Letter was not an official WHO contact email address: CB 323-324 at [130];
(d)that the EPI-WHO Letter did not appear to have been obtained using the official WHO process for issuing employment references: CB 323-324 at [130];
(e)that the use of a non-domain-specific email address for such an important and federally supported immunisation project did not appear to be appropriate or necessary: CB 324 at [131];
(f)that an authentic employment reference requested on 5 March 2020 would not be issued with a date of 4 March 2020: CB 324-325 at [135]; and
(g)that it was implausible that in 2020 an employment reference could be validly authenticated by the issuing authority within 24 hours of a request relating to a single casual employee who may have worked episodically on 14 days in 2013: CB 324-325 at [135].
Ultimately, it is for the Tribunal, as part of its fact-finding function, to identify material it finds relevant to its reasoning and to give that material the weight it considers appropriate in making its findings : Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran at [5]-[7] per RD Nicholson J.
Having regard to [73]-[75] above an inference clearly arises that the authenticity of the EPI-WHO Letter document was a matter that would have been and was discussed with EJN20 again at the Third Tribunal Hearing, and supplants any suggestion that the Tribunal misunderstood EJN20’s evidence.
The numerous reasons given by the Tribunal for rejecting the authenticity of the EPI-WHO Letter, and the concerns the Tribunal had in relation to the credibility of EJN20’s claims, are sufficient to establish that there could not realistically have been a different outcome in the Tribunal Decision even if the Tribunal had erred in the manner EJN20 alleges, and therefore any such error would not have been material: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Hossain at [30] per Kiefel CJ, Gageler and Keane JJ and [72] per Edeleman J.
Separate to its findings as to why it considered the EPI-WHO Letter to lack of authenticity, the Tribunal in the present case found that it was compelled to draw an adverse inference pursuant to s 423A of the Migration Act with respect to credibility as a consequence of the late submission of the EPI-WHO Letter, because EJN20 did not have a reasonable explanation for not giving that evidence to the Delegate, or not submitting that evidence with his Protection Visa application: CB 329-330 at [159]-[161]. That conclusion does not depend upon the other findings as to the lack of authenticity of the EPI-WHO Letter, and therefore any error with respect to the findings as to the authenticity of the EPI-WHO Letter that may exist (but which does not exist in the Court’s view), could not have realistically resulted in a different Tribunal Decision.
Insofar as the final unnumbered particular in ground 1 complains of a lack of a fair hearing process that matter is addressed in relation to ground 2.
For the reasons set out at [69]-[80] above, ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows, unaltered:
The Tribunal failed to discharge its duty under section 348 of the Migration Act by not according to the applicant a fair hearing process.
Particulars:
1. The Tribunal failed to warn the Applicant that adding to his claim at this late stage has serious consequences under sections 5AAA and 423A of the Migration Act before asking the applicant whether he wished to add to his claim. See [20], [83] and [101].
2. The Tribunal acted as judge and jury when the Applicant complained that he finds the Tribunal's style of questioning is confusing and difficult to understand (see [83]).
3. The Tribunal conducted 3 hearings for no apparent good reason.
4.The Tribunal unreasonably set the deadline for a written submission as 30 July 2020 after the 3rd hearing which was held on 22 Jul 2020. Alternatively the Tribunal indicated that a submission after the final hearing is not necessary.
Procedural fairness obligations are imposed on the Tribunal by Pt 7, Div 4 of the Migration Act, and those obligations are taken to be an exhaustive statement of the natural justice hearing rule: Migration Act, s 422B
The requirement with respect to procedural fairness is “set out exhaustively in Division 4 of Part 7 of the Migration Act”: WZATN v Minister for Immigration & Anor [2014] FCCA 861 (“WZATN”).
In WZATN at [22] per Judge Lucev, the Court considered whether and to what extent the Tribunal had complied with its obligations under the Migration Act, as follows:
…
a) the Tribunal complied with its statutory obligation in s. 425 of the Migration Act by validly inviting the applicant to the Tribunal hearing. The Applicant attended the hearing and gave evidence in support of his claims … Further, the Tribunal Decision includes a number of instances where the Tribunal specifically raised with the applicant at the hearing the concerns that the Tribunal has with his claims and evidence. Those concerns included:
i)the applicant’s credibility, the credibility of his claims and the nature of the evidence before the Tribunal to support the applicant’s claims;
ii) the applicant’s lack of a genuine fear of serious harm; and
iii)that the country information undermined the applicant’s claims …
On the materials before it the Court observes as follows:
(a)by invitations dated 17 December 2019, 21 February 2020 and 26 June 2020 (“Invitations”): CB 150, 163 and 276, EJN20 was invited to attend the First, Second and Third Tribunal Hearings;
(b)the Invitations:
(i)gave notice to EJN20 of the day, time and place of each of the First and Second Tribunal Hearings in accordance with s 425A of the Migration Act;
(ii)were sent to EJN20 by email to his nominated email address, being the last address provided to the Tribunal in connection with the review: Migration Act, s 441A(5); and
(iii)contained a statement on the effect of s 426A of the Migration Act,
and thus, pursuant to s 425 of the Migration Act, EJN20 was invited to, and did attend, the First, Second and Third Tribunal Hearings;
(c)EJN20 was on notice from the Delegate’s Decision and the Tribunal’s questioning at the First and Second Tribunal Hearings that the determinative issues on review were the credibility of his claims and whether he satisfied the refugee or complementary protection criteria;
(d)EJN20 was assisted by an interpreter at the First, Second and Third Tribunal Hearings, which had a duration of 47 minutes for the First Tribunal Hearing: CB 158-160, close to two hours for the Second Tribunal Hearing: CB 180-182, and over an hour for the Third Hearing: CB 285-287 and nothing has been suggested (save for the further possible ground discussed at [105]-[108] below) to indicate that there was any issue or matter that inhibited EJN20 from partaking and giving evidence and providing arguments in support of the Protection Visa application: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(e)there was no information or material the Tribunal was required to put to EJN20 pursuant to s 424A of the Migration Act and to the extent the Tribunal sought EJN20 to expand upon aspects or comment on what the country information stated EJN20 did so: CB 332 at [169]; and
(f)the Tribunal provided to EJN20 a meaningful opportunity to present his claims and evidence, and the Tribunal confirmed it had “considered [EJN20’s] claims ... individually and then cumulatively” when making the Tribunal Decision: CB 294 at [15].

It follows from the above observations that the Court has been unable to identify any general denial of the procedural fairness obligations owed by the Tribunal to EJN20 in relation to the First, Second and Third Tribunal Hearings.
Particular 1 alleges that the Tribunal failed to warn EJN20 of the serious consequences under ss 5AAA and 423A of the Migration Act, before asking EJN20 if he wished to add to his claim.
The Protection Visa application was prepared with the assistance of The Humanitarian Group: CB 30. The Protection Visa application included the following information:
…You must provide all the details about why you are seeking protection and, wherever possible, you must provide documentation to support your claims. A decision may be made on the information provided in your written application and you may not be given another opportunity to present these claims. Therefore, it is important that you include all details relevant to your case and provide any supporting documentation at the time you lodge your protection application. …
Section 5AAA of the Migration Act does not give rise to any adverse consequence to an applicant. It simply states that it is the responsibility of a Protection Visa applicant to specify all particulars of their claim and to provide sufficient evidence to establish their claim.
The application of s 423A of the Migration Act is not discretionary. The Tribunal was required to draw an adverse inference in relation to EJN20’s new evidence unless he had a reasonable explanation for not providing the evidence to the Delegate. It is clear that the Tribunal:
(a)raised these issues with EJN20 at the First Tribunal Hearing;
(b)gave EJN20 an opportunity to consider the issue and provide an explanation as to why the evidence was not provided to the Delegate; and
(c)gave EJN20 the opportunity to consider these matters and respond before resuming the Second Tribunal Hearing: CB 319 at [102]-[103] and 320 at [109].
In relation to the issue of document fraud in Pakistan, and the possible application of s 423A of the Migration Act, the Tribunal gave EJN20:
(a)notice of these issues at the Second Tribunal Hearing; and
(b)the opportunity to consider these issues and respond prior to the resumption of the Third Tribunal Hearing: CB 329-330 at [159]-[161].
In all the circumstances the Tribunal afforded EJN20 procedural fairness and no jurisdictional error arises in relation to particular 1.
In relation to particular 2, EJN20 alleges that the Tribunal acted as “judge and jury” when EJN20 complained that he found the Tribunal’s questioning style confusing and difficult to understand. It was within the jurisdiction of the Tribunal as constituted to determine EJN20’s Recusal Request: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 at [74] per Gaudron J. That EJN20 may not agree with the Tribunal Decision in relation to the Recusal Request does not give amount to jurisdictional error.
No jurisdictional error arises in relation to particular 2.
Particular 3 alleges that the Tribunal conducted three Tribunal Hearings “for no apparent good reason”. The Tribunal was obliged to give EJN20 an opportunity to present his evidence and arguments. In doing so, the Tribunal had an obligation to put to EJN20 certain potentially adverse matters for EJN20’s comment. The Tribunal gave EJN20 notice of certain adverse matters at the First and Second Tribunal Hearings. The Tribunal gave EJN20 the opportunity to consider and respond to those matters: CB 319 at [102]-[103], 320 at [109], and 329-330 at [159]-[161].
A review of the summary of what occurred at each of the Tribunal hearings, as contained in the Tribunal Decision, indicates that, at least for the Tribunal, each Tribunal Hearing served a purpose. Although differently and more efficiently organised it may have been unnecessary for the Tribunal to have three Tribunal hearings, it is not unusual for there to be multiple Tribunal hearings in relation to Protection Visa applications. In this case the Second Tribunal Hearing was necessary, in the Tribunal’s view, as a consequence of various matters raised at the First Tribunal Hearing, and likewise as between the Third Tribunal Hearing and the Second Tribunal Hearing. The specific approach adopted by the Tribunal, whilst both cautious and cumbersome, was one which was plainly intended to allow EJN20 ample opportunity to properly deal with those matters raised in the respective hearings. And, whilst the necessity for three Tribunal hearings might be doubted, it cannot be criticised by EJN20 in circumstances where the additional hearings were to his potential advantage if there were matters which required further consideration by him, as was indeed the case as evidenced by his further submissions to the Tribunal in advance of the Second and Third Tribunal Hearings.
It follows that particular 3 does not give rise to any jurisdictional error in the Tribunal Decision.
Particular 4 alleges that the Tribunal “unreasonably set the deadline for a written submission as 30 July 2020”.
A number of observations may be made with respect to this issue:
(a)at no time did EJN20 seek any extension of that timeframe, notwithstanding that EJN20 was specifically told as early as 24 July 2020 (two days after the Third Tribunal Hearing) that any further submissions were required by 30 July 2020;
(b)that notwithstanding the confirmation in the Tribunal’s 24 July 2020 email that further submissions were required by 30 July 2020, EJN20 waited until 29 July 2020 when EJN20 confirmed by reference to an audio recording of the Third Tribunal Hearing received that day, that the Tribunal had indeed indicated at that hearing that further submissions could be made by EJN20, but even then did not seek an extension of time in which to provide submissions;
(c)EJN20 did not seek to file any submissions after 30 July 2020, despite the fact that the Tribunal Decision was not published until 10 September 2020; and
(d)EJN20 had already been provided with an opportunity to provide written submissions in advance of each of the First, Second and Third Tribunal hearings, as well as the opportunity to make oral submissions at each of those hearings.
There is simply no basis in the material before the Court for a conclusion to be reached that the Tribunal failed to afford EJN20 procedural fairness following the Third Tribunal Hearing in circumstances where EJN20 had:
(a)up to eight days in which to provide a further submission to the Tribunal following the Third Tribunal Hearing, and did not seek any extension of the timeframe for providing further submissions; and
(b)at least three opportunities prior to the 30 July 2022 deadline for submissions, that is on 22, 24 and 29 July 2020, to either provide submissions or seek an extension of time for providing submissions.
It cannot be said, after three Tribunal hearings, and three opportunities to provide both written and oral submissions in relation to those three Tribunal hearings, that an opportunity to provide further submissions within eight days of the completion of the Third Tribunal Hearing was legally unreasonable. Indeed, there was no obligation at all of the Tribunal to provide such an opportunity, and the failure here to ensure the further submissions were provided to the Tribunal is one for which EJN20 is responsible. It was not for the Tribunal to make sure that EJN20 made the best use of the opportunity which was afforded to him: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 (“Sullivan”); CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038 (“CEJ15”) at [18(b)] per Judge Lucev, and nor can the Tribunal be held responsible for EJN20’s failure to seek an extension of time in the eight days prior to 30 July 2020, or thereafter.
Insofar as the particular 4 alleges in the alternative that the Tribunal indicated that a submission after the final hearing was not necessary, that is an assertion that is not made out on the evidence, as the Tribunal provided EJN20 with an opportunity to provide any further submissions he wished to provide. EJN20’s Hearing Affidavit acknowledges this at [22]–[23].
For the reasons set out at [83]-[103] above, ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Possible further ground – interpreter error
EJN20’s Hearing Affidavit at [26] raises a possible further ground of interpreter error in relation to the Third Tribunal Hearing. It is not a strong possibility, as EJN20’s evidence simply says that he corrected something which the interpreter had misinterpreted into English. Other than that there is no content to the alleged misinterpretation.
EJN20 provided no supporting affidavit evidence in the form of a transcript of the Third Tribunal Hearing to support any possible claim of errors in interpretation at the Tribunal Hearing. An error in interpretation may result in a jurisdictional error where:
(a)the standard of interpretation is so inadequate that the applicant is effectively prevented from giving evidence; or
(b)the errors in interpretation are material to adverse conclusions reached by the Tribunal: SZRMQ at [9] and [24] per Allsop CJ.
In relation to the standard of interpretation required at the Third Tribunal Hearing, and any assertion of error in relation to that interpretation, the Court makes the following observations and findings:
(a)to amount to jurisdictional error the standard of interpretation at the Third Tribunal Hearing must have been so inadequate that it deprived EJN20 of a real and meaningful opportunity to participate in the Third Tribunal Hearing, because EJN20 was effectively prevented from giving evidence and the conclusions formed on the basis of the inadequately interpreted evidence were material to the outcome of the Protection Visa application: SZRMQ at [78] and [80] per Robertson J; Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [26] per Kenny J;
(b)EJN20 had an opportunity at the Third Tribunal Hearing to claim that there were errors in interpretation, but there is no evidence that EJN20 did so, and it was not for the Tribunal to ensure that EJN20 took the best advantage of his opportunity to be heard: Sullivan; CEJ15 at [18(b)] per Judge Lucev;
(c)there is nothing in the form of a transcript or audio recording of the Third Tribunal Hearing before the Court that would enable it to determine if inadequate interpretations occurred, and, if they did occur, whether they were material to the outcome of the Tribunal Decision; and
(d)based upon the Tribunal Decision it appears that EJN20 answered the questions put by the Tribunal adequately and directly in relation to what was being asked of him, and, on the face of the Tribunal Decision there is no evidence that the interpreter was not conveying to the Tribunal what was being said by EJN20 (and vice versa), and the Court cannot find any error, let alone jurisdictional error, in relation to the issue of interpretation.
It follows from the above that the possible further ground of interpreter error does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
For the reasons set out above at [66]-[108] above, the Court has concluded that the Judicial Review Application does not establish jurisdictional error in the Tribunal Decision, either in relation to grounds 1 and 2, or in relation to the possible further ground of interpreter error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 12 May 2022

File number(s):	PEG 290 of 2020
Judgment of:	JUDGE LUCEV
Date of judgment:	12 May 2022
Catchwords:	MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Pakistan – involvement with polio immunisation program – whether failure to discharge duty to review – whether errors going to conclusion on credibility – whether errors going to availability of domain name and email address – whether fair hearing process – alleged failure to warn of the consequences of additional claim being made – issues with Tribunal’s style of questioning –whether three hearings necessary – whether deadline for submissions unreasonable – whether jurisdictional error
Legislation:	Evidence Act s 56 Migration Act 1958 (Cth) Pt 7, Div 4, ss 5AAA, 36, 65, 91X, 100, 101, 104, 105, 348, 359A, 422B, 423A, 424A, 425, 426A, 441A, 474, 476
Cases cited:	Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1 Brar v Minister for Immigration & Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 CEJ15 v Minister for Immigration and Border Protection [2019] FCCA 1038 Dimitropoulos v Australian Securities and Investments Commission [2019] AATA 1350 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 48 ALD 481 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 NADR v Minister for Immigration & Indigenous Affairs [2003] FCAFC 167 Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WZATN v Minister for Immigration and Border Protection [2014] FCCA 8617 Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division	Division 2 General Federal Law
Number of paragraphs:	110
Date of hearing:	13 August 2021
Place:	Perth
Applicant:	Appeared in person
Counsel for the First Respondent:	Ms S Oliver
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent:	Submitting appearance, save as to costs

PEG 290 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EJN20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	12 MAY 2022