MZYYQ v Minister for Immigration

[2013] FCCA 1260

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYYQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1260

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – section 424AA and 424A of the Migration Act 1958 (Cth) – no jurisdictional error – Application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa), 422B, 424(1), 424A, 424A(1) 424A(3)(a), 424A(3)(b), 424AA, 425

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: MZYYQ

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 735 of 2012

Judgment of: Judge Hartnett

Hearing date: 7 May 2013

Delivered at: Melbourne

Delivered on: 6 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Fernandez

Solicitors for the Applicant: Mano Associates

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The Application filed 19 June 2012 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 735 of 2012

MZYYQ

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an Application filed on 19 June 2012, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 May 2012. The Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) dated 24 August 2011 to refuse to grant a Protection (Class XA) Subclass 866 visa to the Applicant.

2. The grounds of the Application filed 19 June 2012 are as follows:-

   “1. The Tribunal has breached section 424AA of the Migration Act, in that all the evidence given to the Tribunal by the applicant has been put to the applicant contrary to the tenor of the relevant sections.

   2. The volumes of country information sighted by the Tribunal in affirming the decision were never put to the applicant and thereby the Tribunal has not afforded natural justice and/or procedural fairness to the applicant and it fell in to jurisdictional error.

   3. The Tribunal acted on the evidence available on his student visa application and lost sight of the evidence presented in his protection visa application and consequently has not reviewed his protection visa application and thereby fell in to jurisdictional error. Consequently the finding of the credibility of the applicant has been illogical in that the Tribunal has acted only on the evidence available on his student visa application.

   4. The decision of the Tribunal has been infested with bias in that the Tribunal failed to look into the applicant’s claim for a protection visa in spite of the overwhelming evidence rather selectively engaged in illogical acceptance and rejections of claims not pertinent to the applicant’s claim for protection.”

3. The Applicant relies upon a Transcript of the Tribunal hearing and Contentions of Fact and Law filed on 18 October 2012, and Further Contentions of Law filed on 20 November 2012. The First Respondent relies upon an Outline of Submissions filed 21 November 2012 and seeks, in Response filed 9 July 2013, the Application be dismissed.  A Court Book filed 17 July 2012 has been introduced into evidence.  At the hearing, ground number four as set out in the Application filed 19 June 2012 was not pressed.

History

1. The Applicant is a citizen of Sri Lanka who was born in Colombo, Sri Lanka on 25 January 1977. He is now aged 36 years.  He is a single man of Tamil ethnicity. He first arrived in Australia on his own passport and on 9 July 2005, on a Class TU Subclass 573 Student visa valid until 30 August 2008. On 2 September 2008, he applied for and obtained a four week Bridging visa. On 15 September 2008, the Applicant applied for a Class TU Subclass 572 Student (Vocational Education and Training Sector) visa. That application was refused by a Delegate of the First Respondent. The Applicant appealed against that decision on 3 March 2009. On 22 April 2010, the Migration Review Tribunal affirmed the decision not to grant the Applicant a Class TU Subclass 572 visa. On 21 May 2010, the Applicant appealed to the Minister of Immigration and Citizenship (as he then was) (‘the Minister’) to intervene in his case. On 23 February 2011, the Minister declined to intervene in the Applicant’s case.

2. On 17 March 2011, the Applicant lodged an application for a Protection (Class XA) Subclass 866 visa. The Applicant claimed to fear persecution on account of his Tamil ethnicity, his race or ethnicity as a Tamil of Indian origin, his actual and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (‘LTTE’) and the United National Party (‘UNP’) and on account of his membership of particular social groups comprising his father’s family, “Tamils of Indian Origin”, “failed asylum seekers from Western Countries” and the “Tamil Diaspora”. He claimed that his father was a UNP supporter who was the personal assistant to the Mayor of Kandy and that he died in suspicious circumstances in 1999.

3. The Applicant claimed that he did not suffer harm until 2005 when he was questioned by police as a suspected LTTE supporter after assisting in a tsunami relief project. He then fled to Australia to escape regular monitoring by the police. In 2009, he claimed he participated in a Sri Lankan protest in Melbourne. When he refused to participate in a later anti-LTTE protest, he claimed one of his flatmates accused him of being a LTTE supporter and threatened to expose him with photos taken whilst he was participating in the Sri Lankan protest. The flatmate then returned to Sri Lanka and threatened his family, as did the authorities, his family being his sister and widowed mother. The Applicant feared he would be asked to report to police and harmed on his return to Sri Lanka.

4. These matters were first put before the Delegate who, in Protection (Class XA) Visa Decision Record dated 24 August 2011, refused to grant the Applicant a protection visa. The Delegate said, in that Decision Record under “4. Claims for Protection”, the following in part:-

   “… The applicant was asked why he did not apply for a Protection visa when his student visa expired in 2008 and why he did not inform the Minister of his fears of returning to Sri Lanka when he wrote to him and sought Ministerial intervention on 14 May 2010. The applicant stated that he did not fear returning to Sri Lanka in 2008 and that to have applied for a Protection visa sooner would have been to misuse the protection visa system. He further stated that when he came to Australia in 2005, he did not fear returning and was not worried about what was happening there.

   When asked why he renewed his Sri Lankan passport in July 2010, the applicant claims he did so because a Departmental Compliance Officer told him he needed a valid passport and his passport had expired. When asked if he advised the Departmental Officer that he feared returning to Sri Lanka due to persecution, the applicant stated that he did not.”

5. On 20 September 2011, the Applicant lodged an application with the Tribunal to review the Delegate’s decision. The Applicant appointed the same lawyer and registered migration agent to represent him before the Tribunal.

6. By a letter dated 6 March 2012, the Tribunal validly invited the Applicant to attend a hearing on 3 April 2012 to give evidence and present arguments. The Applicant attended the Tribunal hearing on 3 April 2012 accompanied by his representative.

7. On 17 April 2012, the Applicant’s representative provided a Written Submission to the Tribunal which attached independent country information (‘ICI’) on the situation in Sri Lanka. On 4 May 2012 and 18 May 2012, the Applicant submitted further ICI to the Tribunal. The Tribunal had also before it relevant and recent ICI in relation to Tamils in Sri Lanka.

Tribunal hearing

1. Paragraph 35 of the Decision Record dated 22 May 2012 is as follows:-

   “On 21 May 2010, the applicant sought intervention in his case by the Minister of Immigration and Citizenship… under s 351 of the Act. The applicant’s written request for intervention by the Minister … can be summarised as follows:

   a.   The main reason he came to Australia was for a better lifestyle and to pursue higher studies in Australia.

   b.   By the time he left Sri Lanka he held the position of junior executive officer with a large private commercial bank and was also a director of his late father’s private auditing firm which had 1500 clients, including private companies, small businesses, doctors and other professionals.

   c.    He played rugby union and cricket at his school, played first class cricket in Sri Lanka for over eight years and coached junior cricket for young children, including in rural areas.

   d.   After coming to Australia he was misled by an education consultant which meant he had to change education providers but after a couple of semesters he had problems with the new education provider because they were not providing the subject he needed to complete his degree,

   e.    He has been playing professional cricket for the last four years for the Preston Cricket Club in the Northern District and also conducts coaching camps in regional Victoria.

   f.     He is in a relationship with an Australian girl who is studying to be a doctor, they plan to move to regional Victoria to help people in those communities and they already go to regional Victoria every month to help people there with sports or other day to day activities.”

2. Paragraph 37 of the Decision Record dated 22 May 2012 is as follows:-

   “The applicant has been granted a series of Bridging visas E since he applied for a further student visa in Australia. Information provided by the application (sic) during an interview with the Department, without the assistance of an interpreter, on 30 March 2011 in relation to the grant of those bridging visas…  [included that:-]

   …

   d. iv. he had been harmed by the Sri Lankan police in the past following a bomb blast in a sacred temple because he was one of the people suspected, arrested and detained for a day and a half in connection with the blast, after which he had been released because no case was established against him.”

3. During the course of the hearing, the Tribunal advised the Applicant that it had a number of issues or concerns with his claims which it would give him an opportunity to address at the hearing. Those concerns included; country information before it, contrary to the Applicant’s claims; the significant period of time which elapsed between the Applicant arriving in Australia and his lodging of the Protection (Class XA) Subclass 866 visa application; and the numerous inconsistencies in the Applicant’s own evidence. At paragraphs 93 and 94 of the Decision Record dated 22 May 2012, the Tribunal said:-

   “93. The Tribunal advised the applicant it had a number of concerns about some of the evidence before it. The Tribunal explained that this evidence was information that would, if accepted, be a reason or part of the reason for affirming the decision to refuse the visa application. The Tribunal explained that the information were inconsistencies between what the applicant had stated at the hearing or as part of the visa application and information contained in the Departmental files in relation to the applicant’s previous application for a student visa, his appeal of the refusal of that application to the MRT, his request to the Minister and his interview with immigration officials in relation to bridging visas. The Tribunal advised the applicant it would explain these inconsistencies; check whether he understood the inconsistencies; if he did, explain the relevance of these inconsistencies; check whether he understood the relevance and, if he did, give him an opportunity to comment on or respond to those inconsistencies either immediately or, at his request, after adjourning the review.

   94. The Tribunal then put this information to the applicant under s.424AA of the Act.”

4. The various inconsistencies in the Applicant’s evidence were put to him as set out in the Tribunal’s Decision Record dated 22 May 2012 at paragraphs 95 to 109 inclusive, with the Tribunal advising the Applicant that such matters were relevant to the Tribunal’s assessment of the Applicant’s credibility in relation to each claim individually and in relation to his claims for protection generally.

Findings

1. Paragraph 157 to 163 of the Decision Record dated 22 May 2012 are as follows:-

   “157. The Tribunal accepts the difficulties of proof faced by applicants for refugee status. In particular there may be statements that are not susceptible of proof. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196 – 197 and 203 – 204 recognises the particular problems of proof faced by an application for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status. 

   158. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

   159. As put to the applicant at the hearing, the Tribunal has significant concerns about the credibility of the applicant’s claims in light of inconsistencies between what the applicant had stated at the hearing or as part of the visa application and information contained in the Departmental files in relation to the applicant’s previous application for a student visa, his appeal of the refusal of that application to the MRT, his request to the Minister and his interview with immigration officials in relation to bridging visas, as well as the significant period of time between when the applicant arrived in Australia, when he claims that his fears of harm crystallised and when he lodged the visa application.

   160. The Tribunal found the applicants explanation of his conduct in relation to the refusal of his onshore student visa application to lack credibility. The Tribunal does not accept the applicant’s explanation for why he had not taken steps in relation to those proceedings, particularly in his dealings with the MRT, which would ensure he had a hearing before the MRT to explain his circumstances. Given the applicant’s demonstrable level of education and English language capacity, the Tribunal does not accept that the applicant followed the advice of a registered migration agent to deliberately delay the student visa refusal process and not respond to a letter from the MRT in a way that would ensure he had a hearing before the MRT despite, as the applicant claims, by the time of going through that process genuinely fearing that he would be harmed if he were to return to Sri Lanka.

   161. Further, in assessing the applicant’s credibility the Tribunal gives weight to the applicant’s readiness to state to the Tribunal at the hearing that he had told the Department that he had lodged the onshore student visa application solely so he could appeal the decision to the MRT and would not be providing any documents to the Department in relation to that application whereas, in fact, as the applicant acknowledged only after the relevant notes on the Department file for his onshore student visa application were put to him at the hearing, he had told the Department he was going to provide documents, being a certificate of enrolment, which he was never going to provide and that he told the Department this, as admitted by the applicant at the hearing, solely to prolong the application process in relation to his onshore student visa application.

   162. For the same reasons, the Tribunal does not accept the applicant would not have referred to his reasons for fearing harm on his return to Sri Lanka in his written request for intervention by the Minister if he genuinely feared being harmed on his return. The fact he did not refer to fearing harm in Sri Lanka in the request leads the Tribunal to conclude that he did not fear any harm and that the applicant’s claims about why he feared harmed in Sri Lanka at that time, and now, are not truthful.

   163. Further, the Tribunal notes the applicant’s admissions at the hearing, in circumstances where it was clear to the applicant this matter was likely to be put to him, that he deliberately provided false information in his request to the Minister about a relationship with an Australian citizen. The Tribunal gives significant weight to the applicant’s willingness to provide false information to the Minister in assessing the applicant’s credibility generally.”

2. Paragraphs 165 to 168 of the Decision Record dated 22 May 2012 further elaborate on the Tribunal finding that the Applicant lacked credibility and the consequences of that finding in respect of his claims, and are as follows:-

   “165… The Tribunal finds that if the applicant had in fact been arrested by the Sri Lankan police following a bomb blast in the sacred temple he would have referred to this in the visa application and before the Tribunal without being prompted to do so. The Tribunal therefore finds that the applicant was not arrested by the Sri Lankan police following a bomb blast in a sacred temple and that when he claimed to the Department official during the interview for the bridging visa that he had been[,] he was providing further false information to the Department. The Tribunal gives significant weight to the fact that he has done so in its assessment of the applicant’s credibility generally.

   166. Finally, the Tribunal finds that the significant period of time between when the applicant’s visa expired, when the MRT affirmed the decision to refuse his onshore student visa application, in particular, and when the applicant lodged the visa application raises serious concerns about the credibility of the applicant’s claims. The Tribunal finds it implausible that, even if the applicant’s claim that his fear of harm crystallised in 2009 were true (which the Tribunal does not accept), the applicant would have delayed lodging a protection visa application until March 2011 after the Minister declined his request for intervention and, as noted above, having made no reference to fearing harm in Sri Lanka in that request or to the MRT.

   167. In light of the Tribunal’s serious concerns about the credibility of the applicant’s claims, the Tribunal does not accept the applicant as a witness of truth in relation to those claims. Accordingly, the Tribunal does not accept that:

   a.   the applicant’s father was involved in a dispute with a person with strong political connections in  Sri Lanka over the use of World Heritage listed land;

   b.   stones were thrown at the applicant’s family home or that there was any other targeting of the applicant or his family because of his father’s involvement with the UNP;

   c.   the applicant was suspected, arrested and detained for a day and a half in connection with a bomb blast in a sacred temple in Sri Lanka;

   d.   the applicant was otherwise involved in a round up and caught in search soon after a terrorist attached in Sri Lanka at any other time;

   e.   the applicant was involved in assisting tsunami victims with food and materials in late 2004 or early 2005 or at any other time;

   f.    the applicant was a human rights activist or in any other way involved in the promotional protection of human rights in Sri Lanka;

   g.   a petition accusing him of involvement with or support for the LTTE was lodged against the applicant because of his involvement with assisting tsunami victims or for any other reason;

   h.    the applicant was questioned by Sri Lankan police because he was suspected of involvement with or support for the LTTE because of his involvement with assisting tsunami of victims or for any other reason;

   i.     the Sri Lankan police or security forces, or any other individuals or groups associated with the Sri Lankan government, have visited or searched the applicant’s family home in Sri Lanka or that they are otherwise looking for or wanting to know about the applicant;

   j.     the Sri Lankan police or security forces, or any individual or group associated with the current Sri Lankan government, have or are monitoring the telephone calls of the applicant or his family either in Sri Lanka or Australia;

   k.    the applicant has ever spoken publicly in terms critical of the circumstances of Tamils or Tamils of Indian origin either in Sri Lanka or Australia;

   l.     the length of time between when the applicant’s claimed … fear of persecution crystallised (which the Tribunal does not accept) and when he lodged the visa application was as a result of poor advice from his previous registered migration agent or any other party; and/or

   m.   the applicant has been or will be for any other reason identified as being involved with or supporting the LTTE either by the Sri Lankan government, police or security forces, any other individuals associated with the Sri Lankan government or anyone else in Sri Lanka.

   168. In relation to the applicant’s claimed attendance at a protest in Melbourne in January 2009, the Tribunal accepts, based on the video footage provided, that such a protest occurred. However, in light of the Tribunal is (sic) findings in relation to the applicant’s credibility, it does not accept that the applicant was present at the protest, that his photograph was taken at the protest, that a photograph of him taken at the protest was shown to him or any other people either in Australia or in Sri Lanka. Further, the Tribunal does not accept that the applicant attended or was present at any other protest against the current Sri Lankan government held in Australia or Sri Lanka or that any Sri Lankan citizens with whom the applicant has had contact in Australia have targeted him in Australia, visited his family home in Sri Lanka, spread rumours either in Australia or Sri Lanka or otherwise reported to the Sri Lankan police or security forces or anyone else in Australia or Sri Lanka about the applicant being involved with or supporting the LTTE, being opposed to the current Sri Lankan government or for any other reason.”

1. The Tribunal then went on to consider whether the Applicant was owed protection under the complementary protection criteria (s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’)). As the Tribunal did not accept that the Applicant had a profile as an actual supporter of the LTTE or would be imputed as an LTTE supporter, it was not satisfied that there was a real risk that the Applicant would suffer significant harm as defined in s.36(2A) of the Act on his return to Sri Lanka. The Tribunal found that the ICI indicated that some very poor or vulnerable Tamils of Indian origin might be at risk of significant harm, but that the Applicant did not fit this profile. The Tribunal also did not accept that the Applicant faced a real risk of significant harm on his return to Sri Lanka from a Western country because it did not accept that the Applicant would be identified as a failed asylum seeker or an LTTE supporter. Accordingly, the Tribunal was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that the Applicant would suffer significant harm. It found that he did not satisfy the complementary protection criteria nor that he was owed protection obligations under s.36 of the Act.

Consideration

1. Section 424A of the Act is as follows:-

   “(1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.”

2. Section 424AA of the Act is as follows:-

   “If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

3. Section 422B of the Act is as follows:-

   “(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3) In applying this Division, the Tribunal must act in a way that is fair and just.”

4. In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 Tracey and Foster JJ considered the operation of ss.424A and 424AA and stated at paragraphs 80 to 93, the following:-

   “[80] In our view, the legislature must be taken to have intended that the provisions of s 424A and s 424AA would operate in a coherent and complementary fashion. The two sections should be construed in a manner which gives effect to that intention.

   [81] Subject to subs (2A) and subs (3) of s 424A, the Tribunal is obliged to comply with the requirements of s 424A(1). No discretion is involved.

   [82] Subsection 424A(3) exempts from the obligations imposed upon the Tribunal by s 424A(1) certain kinds of information. One of the types of information exempted from the requirements of s 424A(1) is information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

   [83] This type of information is generally called country information (see the discussion as to this in NAMW 140 FCR 572 at [64]–[74]).

   [84] Section 424A(2A) provides a further exemption from the requirements of s 424A(1):

   … if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under Section 424AA.

   [85] This latter exemption is not so much an exemption in respect of a type or kind of information (as is the case in respect of the subject matter of subs (3)) but is rather an exemption afforded to the Tribunal if it embarks upon a course of action which engages the provisions of s 424AA and if it complies with the requirements of that section.

   [86] The decision to engage the provisions of s 424AA is discretionary in the sense that the Tribunal is not obliged to take a course which engages those provisions but may do so if it considers such a course of action to be appropriate.

   [87] In our view, the Tribunal must always comply with the provisions of s 424 A. However, the Tribunal has a choice as to whether it will invoke the provisions of s 424AA.

   [88] If the information under consideration by the Tribunal is the type of information covered by subs (3) of s 424A or if the Tribunal has engaged the provisions of s 424AA and complied with the requirements of that section, it need not meet the requirements of s 424A(1). This is because s 424A(2A) relieves the Tribunal of the obligation to do so if s 424AA has been complied with and s 424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.

   [89] The provisions are designed to facilitate the conduct of reviews contemplated by Pt 7 of the Act. If s 424A were triggered during the run of a review hearing and s 424AA had not been enacted, the hearing would have had to be adjourned in order to enable the s 424A(1) written particulars to be given. Such an outcome would be disruptive and inconvenient. If, as is now the case since the introduction of s 424AA into the Act, clear particulars of the relevant information are given at the hearing orally and the Tribunal otherwise complies with s 424AA(b) in its entirety, then the obligations imposed upon the Tribunal by s 424A(1) will be satisfied in substance during the course of the review hearing by the giving of those oral particulars. In that way, the objects sought to be achieved by s 424A(1) will be met.

   [90] Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative — it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the Section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.

   [91] In our view, the information covered by each Section must be the same. Under s 424AA, country information simply need not be mentioned at all either because it is not information within the meaning of that term in s 424AA or because, if it is information within s 424AA, it:

   (1) Will be the subject of appropriate particulars as contemplated by s 424AA(a) and the Tribunal will comply with s 424AA(b)(i) to (iv); or
   (2) The Tribunal will not comply with some part of s 424AA.

   [92] Compliance with s 424AA will lead to the benefit afforded to the Tribunal by s 424A(2A). Non-compliance will cast the Tribunal back into s 424 A. Upon being forced back into the s 424A requirements as a result of non-compliance with one or more of the requirements of s 424AA, the Tribunal will get the benefit of s 424A(3)(a) in respect of country information.

   [93] Thus, one way or another, in respect of country information, failure to comply with all of the conditions laid down in s 424AA will not constitute jurisdictional error.”

1. The Tribunal’s obligations to invite an applicant to comment on information arise under s.424A(1) of the Act. Section 424AA of the Act is merely facultative and even if there were, which I find there is not, non-compliance with the provision in circumstances where there was no duty otherwise imposed by s.424A of the Act it is of no legal consequence (SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415 at paragraph 2 per Moore J; at paragraph 79 per Tracey and Foster JJ).

2. The Applicant’s written submissions appear to assert that the Tribunal breached s.424AA of the Act in putting to him concerns it had with the credibility of his evidence during the hearing in accordance with the section. It was open to the Tribunal to proceed in this manner. “Information” for the purposes of s.424A of the Act does not include inconsistencies, or doubts about an applicant’s claims arising from inconsistencies (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at paragraph 17). Accordingly, it may not have been strictly necessary for the Tribunal to put the above inconsistencies to the Applicant for comment. In any event, there was simply no error in the Tribunal putting this material to the Applicant for comment according to s.424AA of the Act during the hearing (SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at paragraph 30).

3. As submitted by Counsel for the First Respondent, to the extent that the Applicant is asserting that the Tribunal erred by putting to him information from in his student visa application and his Ministerial intervention request and not his Protection (Class XA) Subclass 866 visa application, this assertion plainly cannot succeed. The Tribunal is entitled to have regard to any information it considers relevant (s. 424(1) of the Act). There is no obligation on the Tribunal to only have regard to information that the Applicant had provided in relation to his Protection (Class XA) Subclass 866 visa application in reaching its decision.

4. As to ground two of the Application filed 19 June 2012, it cannot succeed. Section 422B of the Act applied to these proceedings. The Applicant was entitled to those statutory rights. The choice of (and weight given to) the ICI was a matter solely for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraphs 11 to 13). There was no obligation on the Tribunal to put the ICI on which it relied to the Applicant for comment, pursuant to s.424A of the Act. Further, the ICI provided by the Applicant to the Tribunal fell within the exceptions as set out in ss.424A(3)(a) and 424A(3)(b) of the Act.

5. The Tribunal, in a long and detailed decision record considered each and every of the Applicant’s claims and made adverse credibility findings open to it on the evidence before it. The Tribunal findings were not illogical as claimed by the Applicant and the Tribunal’s decision was not a decision that no rational or logical decision maker could arrive at on the same evidence (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraphs 121 to 131 per Crennan and Bell JJ). The Tribunal was not require to accept the Applicant’s claims at face value and the weight to be given to his claims and evidence, including his documentary evidence, was a matter for the Tribunal to assess as part of its fact-finding function (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraphs 281 to 282; Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122 at paragraph 35). The Tribunal’s findings were open to it on the material before it which included the various inconsistent claims made by the Applicant, and the Court cannot review the merits of the Tribunal’s decision.

6. The Applicant’s allegations of bias were baseless and are to be rejected. Nothing in the evidence supported this very serious allegation as effectively conceded in the Further Contentions of Law filed by the Applicant on 20 November 2012 and by the Applicant’s Counsel.

7. The Tribunal decision was thorough and set out its careful consideration of the Applicant’s claims. That it did so at some length does not go to jurisdictional error as broadly asserted by the Applicant. The Tribunal complied with ss.422B, 425 and 424A of the Act. Further, the Tribunal complied with s.424AA of the Act in respect of the inconsistencies in the Applicant’s evidence as given in support of his student visa application, tribunal application and Ministerial intervention request, all of which were properly put to the Applicant for comment orally and in the course of the hearing. The Applicant was made very aware that his credibility was a determinate issue and he was given ample time to address this matter.

8. There is no jurisdictional error and the application must fail. Costs will follow the event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  6 September 2013