MZAFN v Minister for Immigration

[2015] FCCA 2414

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2414

Catchwords:
MIGRATION – Judicial Review Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application for extension of time dismissed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.363, 414, 420, 424A, 430, 477, 477(1), 477(2)

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

HTUN v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZMFJ v Minister for Immigration& Anor [2009] FMCA 771
SZOCH v Minister for Immigration& Anor [2010] FMCA 300
SZSDA v The Minister for Immigration [2012] FCA 1319

Applicant: MZAFN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1123 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 June 2015

Delivered at: Melbourne

Delivered on: 4 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Stapleton

Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825. These costs are in addition to those ordered on 11 May 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1123 of 2014

MZAFN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 27 September 2012.  In that decision, the Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Protection (Class XA) visa.

2. The Applicant relies upon his Amended Application filed on 1 June 2015, Written Submissions dated 29 May 2015, an Affidavit of the Applicant affirmed on 6 June 2014 and an Affidavit of Ms Robin Margaret Burdett dated 27 May 2015 annexing a transcript of the Applicant’s hearing before the Tribunal on 13 August 2012 (‘the transcript’).

3. The Applicant requires in these proceedings an order that the time for making the application be extended under s.477(2) of the Migration Act 1958 (Cth) (‘the Act’). The grounds for application for extension of time, as set out in the Amended Application filed on 1 June 2015, are as follows:-

   “3. It is necessary in the interests of the administration of justice to make the order because:

   (a) After the Second Respondent’s decision, the applicant sought advice about his option and as a result;

   (i) Believed he needed legal representation to apply to the Federal Circuit Court which he could not afford; and

   (ii) Understood an application for Ministerial Intervention could be made instead;

   (iii) Made the application for Ministerial Intervention on 6 November 2012 which was declined on 14 May 2014. 

   (b) After being advised on 14 May 2014 the Ministerial intervention application had failed, the Applicant sought alternative legal advice and obtained legal representation and applied to the Federal Circuit Court on 6 June 2014.”

4. In his substantive application, the Applicant seeks a writ of certiorari quashing the decision of the Second Respondent dated 27 September 2012; a writ of mandamus directed to the Second Respondent requiring the Second Respondent to determine the application according to law and that the matter be remitted to the Second Respondent, differently constituted, for determination according to law; and a writ of prohibition preventing the First Respondent from taking any action upon the decision of the Second Respondent.  The Applicant seeks the costs of and incidental to the Application.

5. The grounds of application, as stated by the Applicant, are as follows:-

   “1. The Second Respondent’s decision was affected by jurisdictional error because the Second Respondent failed, pursuant to its obligation in section 414 Migration Act 1958 to comply with the condition of the exercise of decision-making power which was to fully and properly review the decision of the First Respondent.

   Particulars

   The Second Respondent failed, expressly and by necessary inference, to conduct a complete review of the evidence before it by failing to: 

   (a) Ask the Applicant during the hearing how the country information produced to it by the Applicant [p.46 Decision Record] supported the Applicant’s claims; and

   (b) Review and compare the contents of the country information to the Applicant’s claims and incorporate that analysis into the Decision Record and findings. 

   2. The Second Respondent’s decision was affected by jurisdictional error because the Second Respondent because the Respondent’s failure to:

   (a) Ask the Applicant during the hearing how the country information produced to it by the Applicant [p.46 Decision Record] supported the Applicant’s claims; and

   (b) Review and compare the contents of the country information to the Applicant’s claims and incorporate that analysis into the Decision Record and findings;

   Was contrary to the requirements in section 420 Migration Act 1958 of the Second Respondent to provide a mechanism of review that is fair and to a review a decision according to substantial justice and the merits of the case and was manifestly unreasonable according to the common law.

   3. The Second Respondent’s decision was affected by: 

   (a) The failures outlined in the particulars to Ground 1; and 

   (b) Giving excessive weight to the evidence that the Applicant had applied for other visas for applying for Complementary Protection;  and

   (c) Giving excessive weight to the evidence that the Applicant was sad not to be able to return to Bangladesh to visit family instead of being fearful of doing so;

   Which resulted in making an erroneous finding and or reaching a mistaken conclusion in a way that affected the exercise or purported exercise of the Second Respondent’s power which amounted to jurisdictional error and invalidated the decision of the Second Respondent.”

6. The First Respondent opposes the orders sought in the Application and seeks that the Court:-

   a)refuse the application for an extension of time and dismiss the application as incompetent under s.477(1) of the Act;

   b)if satisfied that an order should be made extending time, dismiss the substantive application; and

   c)the First Respondent seeks costs.

7. The Court has before it the First Respondent’s Written Submissions filed on 28 April 2015, together with the First Respondent’s further Written Submissions filed on 9 June 2015.  There is also before the Court in evidence the material as contained in the Court Book. 

History

1. The Applicant is a national of Bangladesh.  His ethnic group is Bangali and his religion, Muslim.  He arrived in Australia in 2001 as the holder of Student (Subclass 573) visa valid to 30 August 2003.  On 18 September 2002, he was granted a bridging visa, consequent upon the cancellation of his student visa and enactment by him of the review processes available, and was thereafter granted a number of bridging visas.  The Applicant applied to the Department of Immigration & Citizenship (as it then was) (‘the Department’) for a Partner Temporary (Class UK) visa on 11 August 2005.  That visa was ultimately refused.

2. On 5 December 2011, the Applicant lodged his application for a Protection (Class XA) visa (‘the visa’).  On 22 March 2012, a Delegate of the First Respondent made her decision to refuse to grant the visa and, on 19 April 2012, the Applicant applied for review of that decision.

3. On 13 August 2012, the Applicant appeared at a hearing before the Tribunal to give evidence and present arguments.  On 27 September 2012, the Tribunal made its decision, and by letter of the following day notified the Applicant of the handing down of that decision.  That correspondence dated 28 September 2012 was sent by registered post to the Applicant. 

4. On 10 June 2014, the Applicant filed the Application now before this Court seeking an extension of time in which to apply for judicial review of the decision of the Tribunal, and if successful a review of such decision.

The Tribunal hearing and decision

1. The Tribunal had before it the Department’s file relating to the Applicant.  It also had regard to the material referred to in the Delegate’s decision, including country information provided by the Applicant. 

2. In the 10 years since leaving Bangladesh, the Applicant has resided in Australia.  He has been educated at various institutions and gave his occupation as “business/study” but stated to the Tribunal member that he was not currently employed. He had married in Australia on 10 February 2005 and divorced on 19 January 2010. 

3. The Applicant’s claims are set out in paragraphs 22 to 26 of the Tribunal Decision Record.  They are as follows:-

   “22.  Asked why he left Bangladesh, he stated (verbatim, errors in original): 

   I had left the Bangladesh in fear of death threat and well founded fear of being persecuted for the reasons of moderate believed & political opinion against the fundamental Islamic party Jamat Islam & Islamic Shaffna Shibbir.  The student wing of the Shaffna Shibbir is a very much radical and violent group whose member’s are very active in major city, town and village all over the country.  Before I left the country once they had kidnap me and seek ransom from my family by sending death threat in 1997.  As latter through 3^rd party mediator I was released and escaped the country.

   23. Asked what he feared if he went back to Bangladesh, he stated:

   I fear that if I go back to the country they will still looking for me because of my past activity and they may persecuted me or even kill me which will not only put pressure and stress myself but will bring additional burden to my family member. As various time after I left the group threat to my family members regarding past political activity & opinion.

   24.  Asked who he feared, he stated:

   the members of the radical and violent wing of Shaffna Shibbir the student group and political affiliation of mainstream fundamental Islamic party (illegible possibly “Jamat”) Islam.

   25.  Asked why he thought it would happen to him if he went back, he stated: 

   well as they had already targeted me and take me as a hostage in the gunpoint before as I believed my ideology and stand against them in my past activity and they have very much past track record of me. So I believed as soon as they know Im in the country, theire member will notify the group.

   26.  Asked if he thought the authorities of that country could and would protect him if he went back and if not, why not, he stated:

   no; I think the authority of the country cannot protect me because of the law & order of the country is very much corrupted, furthermore police are very much biased a lot of death happen with in police custody some thing minor issue the police take kickback money.  So most of time the opponent get the upper hand and persecuted you.  Even though some of the right-wing political party MPs very much supportive of this radical group who have strong governmental level lobbying group.”[1]

   [1] Refugee Review Tribunal Decision Record dated 27 September 2012 at [22]-[26].

4. At the Tribunal hearing on 13 August 2012, the Applicant gave sworn oral evidence.  Prior to the hearing, he had submitted to the Tribunal a medical report from Dr Andrew McDonald from the Asylum Seekers Resource Centre, and several pages of country information in relation to Bangladesh.  Dr McDonald reported that he saw the Applicant on three occasions and that the Applicant reported insomnia, anger and a transient feeling of self-harm.  Dr McDonald prescribed Citalopram and Temazepam.

5. The country information provided by the Applicant consisted of a transcript (10 pages) of the evidence given by John Sifton of Human Rights Watch, to the Tom Lantos Human Rights Commission on 19 July 2012, in relation to human rights abuses in Bangladesh, in particular in relation to labour issues, women’s rights, abusive security forces and its obligations toward refugees.

6. The Applicant stated at the outset to the Tribunal that at the time of his interview with the Delegate, he was suffering from depression “mentally, physically and morally”.  He stated that he had suffered from depression for 10 years.  He had been unemployed and living on the streets.  His parents were old and could not support him financially.  There were violent groups in the south of Bangladesh.  When the Tribunal asked the Applicant if he was actually living on the streets, the Applicant responded that he was not.  Asked why he told the Tribunal that he was living on the streets, he stated that “living on the streets means not having a job”.

7. In respect of each of the claims made by the Applicant, the Tribunal asked the Applicant for further details pertaining to same.  Where the Tribunal had concerns, it voiced them to the Applicant.  For instance, the Tribunal noted the Applicant had not asserted racial persecution in his application for protection.  The Applicant stated that he had forgotten to include such persecution.  The Tribunal thereafter considered such claim.

8. The Tribunal noted to the Applicant there was a 10 year delay between the Applicant’s arrival in Australia and his lodgement of his application for a protection visa.  The Applicant stated he was studying.  The Tribunal noted that the student visa was only a temporary visa and queried why the Applicant did not seek a Protection visa.  The Applicant responded that his student visa had been cancelled and he was doing English courses and focusing on his studies.  He said that he did not know the rules. 

9. The Tribunal asked the Applicant when the Bangladesh Awami League, of which the Applicant claimed to be a member, came to power in Bangladesh.  He responded, “2008”.  When asked who was in power before then he stated, “the BNP”.  When asked if that was the political arm of Jamaat Islam, he agreed.  The Tribunal noted, as stated in paragraph 84 of its Decision Record dated 27 September 2012 (‘the Decision Record’), that it seemed curious that the Applicant did not seek protection earlier when his ideological enemies (the BNP party) were in power, but rather applied for protection when his own party was, and is, in government.  The Tribunal noted to the Applicant that as the holder of a student visa, and having to appeal to retain that status, he was in a precarious position and asked the Applicant why he did not ask the Department about lodging an application for a protection visa in 2005.  The Tribunal noted that he had experience in applying for a student visa and knew from that experience that visas were available if the criteria were met, and that he could have made inquiries about lodging an application for a protection visa. In response, the Applicant said, as set out in paragraph 85 of the Decision Record:-

   “The applicant replied that in 2005 his visa cancellation sent him into mental depression and also led to a sleeping disorder.  He also had a motor vehicle accident, indeed two motor vehicles accidents.  The Tribunal asked him why he did not apply for a protection visa.  He responded that he was on a bridging visa class E.  The Tribunal noted that he had, at one point, purchased an airline ticket to return to Bangladesh.  He responded that he was forced to do that but did not return to Bangladesh due to fear of what might happen to him in Bangladesh.”[2]

   [2] Refugee Review Tribunal Decision Record dated 27 September 2012 at [85].

10. The Tribunal noted, with respect to the Applicant’s application for a spouse visa, which was refused, with such refusal affirmed by the Migration Review Tribunal (as it then was) in October 2010, he did not at that stage apply for a protection visa.  The Applicant responded he thought he would get a Bridging Visa A. 

11. The Tribunal asked the Applicant how long it was after receiving the decision by the Migration Review Tribunal that he applied for Ministerial Intervention. The Applicant stated, “A few months.”  The Tribunal noted that the Migration Review Tribunal decision was made in October 2010 and his application for Ministerial Intervention was made in September 2011.  The Tribunal asked the Applicant why he delayed applying for Ministerial Intervention. The Applicant responded that he was suffering from depression. 

12. The Tribunal noted that the Applicant had a solicitor assisting him in his application for Ministerial Intervention.  Nevertheless he did not, in his letter, mention his claimed persecution in Bangladesh to the First Respondent. The reason for the absence of this information, the Applicant stated, was that he had low self-esteem, a sleeping disorder and depression. 

13. The Tribunal asked the Applicant why he did not mention the persecution now claimed to his psychologist.  The Applicant responded that that consultation was more about his relationship with his wife, and domestic violence and his depression after his accident rather than what had occurred 10 years earlier. 

14. The Tribunal, as set out in paragraph 94 of its Decision Record:-

    “…raised the fact that a person calling himself “Rambo” had sent an email to the Department in which Rambo accused the applicant of making a fraudulent claim for protection and faking his depression. The applicant responded that he did not know anyone by the name “Rambo”.”[3] 

    [3] Refugee Review Tribunal Decision Record dated 27 September 2012 at [94].

15. The Tribunal asked the Applicant about his employment history in Australia, and in respect of Complementary Protection, asked why after nearly 15 years absence from Bangladesh he would be of interest to anybody.  The Applicant stated that he could not go back to Bangladesh.  The Tribunal noted that rather than being opposed to the prospect of going back to Bangladesh, the psychologist noted in his report that the Applicant was suicidal at the prospect of being “denied the right to go back to Bangladesh”. The Applicant replied that he had wanted a visa to visit his sick brother in Singapore.

16. On 21 August 2012, the Tribunal sent the Applicant a letter inviting him to comment on information which the Tribunal considers would, subject to the Applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. A number of particulars of information clearly articulated were set out in that correspondence. The Tribunal had foreshadowed the possible sending of this correspondence to the Applicant. The correspondence was sent by registered post to the correct address and is deemed, pursuant to the Act, to have been received. No response was received by the Tribunal to that correspondence to the Applicant, and on 14 September 2012, the Tribunal’s letter was returned to sender.

Findings

1. The Tribunal did not find the Applicant to be a cogent witness.  It found that the cumulative effect of a number of credibility problems undermined the Tribunal’s confidence in the veracity of the key components of the Applicant’s claims to the extent that it did not accept that he held the political opinions he claimed to hold, or any opinion, or profile or characteristic that might attract the ire of his putative persecutors, as set out in paragraph 125 of the Decision Record. 

2. In respect of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugee Convention’) criteria, the Tribunal, beyond that the Applicant was a Bangladeshi, did not accept any of the Applicant’s claims, including that he was a supporter of the Bangladesh Awami League, a supporter of multiculturalism, a supporter of the principle of non-discrimination or a supporter of women’s rights or any of his other claims.  Nor did the Tribunal accept that he had been persecuted in the past, including being kidnapped, denied protection, forced to destroy Hindu temples or any of the other claims he had advanced in support of his application. 

1. The Tribunal had no basis to find the Applicant had a well-founded fear of persecution by reason of his race, political opinion or any other Refugee Convention ground.  The Tribunal based its credibility findings on a range of inconsistencies and implausible aspects in the Applicant’s evidence, which it set out in detail in its Decision Record.  In making its credibility findings, it took into account the Applicant’s various explanations for the deficiencies in his evidence, including his mental health. The Tribunal did not attach any weight to the information contained in an email dated 31 May 2012 from a person who gave their name as “Rambo”. The Tribunal did not consider the Applicant’s delay in applying for a protection visa as determinative of the claims made by him.

2. Specifically, the Tribunal said at paragraph 144 of the Decision Record:-

   “The Tribunal has given some latitude to the applicant on the basis of some of the observations contained in the psychologist’s report and the difficulties in giving evidence to a Tribunal.  Moreover, the abovementioned credibility problems (paragraphs 126-143) range from minor to more substantial, but none in themselves are determinative of the review.  However, the cumulative effect of these largely unexplained credibility problems has fundamentally undermined the Tribunal’s confidence in the applicant as a witness of truth.”[4]

   [4] Refugee Review Tribunal Decision Record dated 27 September 2012 at [144].

3. The Tribunal concluded, in respect of the complementary protection criteria, that it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Bangladesh, there was a real risk he would suffer significant harm in relation to his being a supporter of the Awami League, a supporter of multiculturalism, a supporter of the principle of non-discrimination or a supporter of women’s rights or any of his other claims, which, as indicated, had been rejected.  Nor did the Tribunal find there were any other grounds, substantial or otherwise, for believing there was a real risk that he would suffer significant harm.

This Application

1. On 6 June 2014, the Applicant applied out of time to this Court for a review of the decision of the Second Respondent of 27 September 2012.  The hearing of that application and the substantive application was set down for 11 May 2015.  The Applicant sought and was granted an adjournment of the hearing to 12 June 2015.

2. The Court’s power to extend the 35 day period for making an application for review is as set out in s.477 of the Act. The Court can exercise the power contained therein if it is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. The Application for an extension of time is supported by an Affidavit of the Applicant dated 6 June 2014. 

4. The Application for judicial review was filed one year and seven months outside the time limit provided for in s.477(1) of the Act. This is a significant delay. That, itself, weighs against the granting of an extension of time.

5. Under s.477(2) of the Act, one of the requirements for the exercise of the discretion to make an order to extend time is that the Court considers that it is in the interests of the administration of justice to make the order. In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at paragraph 44, Federal Magistrate Nicholls (as his Honour then was) identified the following considerations as relevant to that inquiry:-

   “(1) The extent of the delay and the reason for the delay.

   (2) Whether there is any merit in the application.

   (3) Whether there is any prejudice to the respondents

   (4) The impact on the applicant.

   (5) The interests of the public at large.

   (6) The Court’s discretion itself.”

6. The First Respondent submits that having regard to the above matters and, in particular, the first two, it is not necessary in the interests of justice to make an order extending the time period in this case. 

7. The First Respondent concedes that there is no particular prejudice to the First Respondent occasioned by the delay of one year and seven months.  The First Respondent submits, however, that the delay has not been satisfactorily explained.  The Applicant’s evidence, in his Affidavit dated 6 June 2014, which his submissions claim give a more fulsome explanation of his reasons for delay, refers to the Applicant suffering from depression at the relevant time but, otherwise, the First Respondent argues, does not satisfactorily explain his inability to make an application for judicial review.

8. The Applicant argues that the significant delay was caused by the Minister of Immigration and Citizenship’s decision-making time (as he then was) (‘the Minister’), and militated against, by the Applicant’s own desire to make a decision quickly and do what he was able to afford to do at that time. The First Respondent submits that the Applicant cannot rely upon the fact of having filed an Application for Ministerial Intervention as a satisfactory explanation for his failure to file the present application within time. This is the case. It is well established the pursuit of the favourable exercise of a discretionary power of intervention from the Minister does not explain a failure to challenge the validity of the decision within time,[5] and this is so regardless of the length of time taken by the Minister.

   [5] SZOCH v Minister for Immigration & Anor [2010] FMCA 300 at [38] and the various cases cited therein.

9. In his submissions, the Applicant relies on his claimed misunderstanding that he could not make an application for judicial review without a legal representative, and a claim that he could not afford legal representation, to reasonably explain his delay. 

10. As was held by Judge Foster in SZSDA v The Minister for Immigration [2012] FCA 1319 at paragraph 38:-

    “Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay: at [38].”

11. The Applicant argued that the explanation for his delay is plausible and should be accepted.  It was further argued that considering the challenges any Australian citizen would face as a prospective litigant in paying for legal services to run a review application, it was not unreasonable for a migrant applicant to face the same or greater challenges.  Thus, in the interests of the administration of justice, the Applicant’s explanation should be accepted and the extension granted. 

12. I find the Applicant’s arguments do not satisfactorily explain a delay of some 19 months, taking also into account the fact that the Applicant received legal advice at the time he received the Tribunal’s decision. 

13. A further question for the Court to consider in exercising its discretion, is whether the substantive application itself has merit.  The Court concludes that the grounds of the Amended Application do not have sufficient merit to require an extension of time in the interests of justice. 

14. In his Amended Application, the Applicant seeks to rely on three new grounds, having abandoned those grounds contained in the Application dated 10 June 2014. 

Grounds 1 and 2

1. Grounds 1 and 2 of the Application claim that the Tribunal fell into jurisdictional error by failing to discharge its obligations under s.414 of the Act to conduct a review. Further, the second ground alleges in essence that the Tribunal breached the requirements of s.420 of the Act and common law requirements of reasonableness. Counsel for the Applicant accepts the general proposition that s.420 of the Act in and of itself does not give rise to grounds for judicial review. However he argues a breach of procedural fairness stemming from and arising out of s.420 of the Act can form a basis for jurisdictional error to have occurred. The Applicant claims that the country information containing the evidence given by John Sifton of Human Rights Watch to Tom Lantos Human Rights Commission on 19 July 2012, was not taken into account by the Tribunal. The Applicant claims there was no explanation by the Tribunal of the treatment of the country information in the Decision Record. There was no discussion with the Applicant in the hearing itself about the actual information, and there was no inclusion in the letter of 21 August 2012 of a reference to that information seeking the Applicant’s input to the question of relevance, significance, or otherwise. Thus, the Applicant says the Tribunal did not complete its review function. The Applicant submits further that the Tribunal did not deal with the Sifton information in a fair way and, according to substantive justice and the merits of the case, contrary to s.420 of the Act. The Applicant submits that at common law the Tribunal acted unreasonably.

2. The Tribunal’s Decision Record does refer to the Sifton information in paragraph 46.  That paragraph contains a brief summary of the content of the information as clearly then known by the Tribunal.  It is clear from that paragraph, in conjunction with the Tribunal’s statement at the hearing, that it would read through the material the Applicant provided (as referred to in the transcript evidence at page 4 line 33), which I take to be a reference to the country information provided by the Applicant that the Tribunal did, in fact, have regard to the Sifton information before handing down its decision. 

3. Under s.430 of the Act, the Tribunal is relevantly required to:-

   “... set out its findings on those questions of fact which it considered to be material to the decision which it made, and to the reasons it had for reaching the decision.”[6]

   [6] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].

4. I accept the submissions of the First Respondent that the most that can be said from the omission of a reference to the Sifton information, in the findings section of the Tribunal’s Decision Record, is that the Tribunal gave it no weight. As is well known, the weight to be given to country information is a matter for the Tribunal. The Tribunal was under no further obligation to the Applicant in respect of this information. It was not adverse to the Applicant, and was provided by the Applicant to the Tribunal.

5. The Tribunal did not have to make particular findings about the weight that it gave to the Sifton Report, that Report being another piece of country information, because it made a higher level finding that it did not believe the Applicant’s claims.  It was not necessary for the Tribunal to deal with the Sifton information more extensively than it did as its credibility findings in respect of the Applicant were dispositive of the Applicant’s claims, as submitted by the First Respondent.

6. The Tribunal said, as to the Applicant’s credibility and claims, at paragraph 119:-

   “However, for the reasons explained below, the Tribunal has found that, due to the cumulative effect of a number of credibility problems, it does not accept that the applicant has been persecuted by Shaffna Shabbir and Jamat Islam or that he has a real chance of being persecuted by these groups (any other groups) or that there are grounds for believing there is a real risk that he will be significantly harmed by those groups (or any other groups).”[7]

   The question about conditions in the Applicant’s country on return were all premised on him actually having the attributes he claimed to have, wherein such claims were rejected. Essentially, that made immaterial the Sifton Report. It was not material to compare the treatment by the Tribunal of the Sifton country information with the information received by the third person referred to as “Rambo”. If that information had been given weight, as it was not, it was potentially adverse to the applicant. It attracted the obligation under s.424A of the Act of the Tribunal to inform the Applicant of that information and seek his comment.

   [7] Refugee Review Tribunal Decision Record dated 27 September 2012 at [119].

7. Even if the Tribunal had not considered the Sifton Report at all, and I find it did, I accept the submissions of the First Respondent that the Tribunal would not have failed to discharge its obligation under s.414 of the Act. The “requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the Applicant”. [8]

   [8] HTUN v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244 at [42].

8. The Sifton Report was not a claim or evidence of central importance to the Tribunal’s decision-making process. 

9. The Applicant further submits the Tribunal’s treatment of the Sifton information was contrary to s.420 of the Act and common law. There is no basis for concluding that that provision has been breached in the circumstances of this case. In any event, the High Court has made clear that s.420 of the Act and its Migration Review Tribunal equivalent s.363 of the Act do not impose on the Tribunal any substantive requirements which, if not observed, would support a claim of jurisdictional error.[9]

   [9] Minister for Immigration v Li [2013] 249 CLR 332 at [16 ]and [52].

10. There is, otherwise, no factual or legal basis to suggest that the Tribunal’s treatment of the Sifton information involved it acting unreasonably at common law.  The Tribunal was not obliged to put that information to the Applicant nor have an ensuing discussion with him about it as submitted was its duty by the Applicant. There is no obligation on the Second Respondent to raise evidence as contained in the country information with the Applicant to seek the Applicant’s response and actively consider how the evidence should be incorporated into the findings of fact. 

Ground 3

1. To the extent this ground relies upon the alleged legal error said to be disclosed in grounds 1 and 2, this ground must fail, otherwise ground 3 invites the Court to engage in impermissible merits review.  No jurisdictional error is disclosed in ground 3, and it is without merit. 

2. The Tribunal clearly considered all the claims and component integers of the claims put before it by the Applicant.  The Applicant’s claims were rejected on the basis of credibility findings of the Tribunal.  There is nothing illogical or unreasonable in the treatment of the evidence before it by the Tribunal, nor in its findings which were clearly open to it on the evidence before it. 

3. I find the substantive application itself has no merit.

4. Accordingly, leave will not be granted.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 4 September 2015