SZIFJ v Minister for Immigration - [2008] FMCA 1170

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1170

MIGRATION – Review of decision of Refugee Review Tribunal – whether failure to take into account corroborative evidence – Tribunal found applicant’s claims to be “exaggerated” – finding did not amount to a comprehensive finding of dishonesty or untruthfulness on the part of the applicant – impermissible failure to consider corroborative evidence – jurisdictional error – writs issued.

Migration Act 1958, s.417

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
WAIJv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
WAEE vMinister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth (1999) 162 ALR 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
Applicant A2 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 576
Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186
Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21
M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520; [2004] FCAFC 293
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24
SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683
Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195
NAGG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 84
SZHEH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1301
SZEEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 661

Applicant:

SZIFJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 284 of 2006

Judgment of:

Nicholls FM

Hearing dates:

5 November 2007 & 12 May 2008

Date of Last Submission:

12 May 2008

Delivered at:

Sydney

Delivered on:

25 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr A Crossland

Solicitors for the Applicant:

City Law

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari issue, quashing the decision of the second respondent.
A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.
The first respondent pay the applicant’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 284 of 2006

SZIFJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 30 January 2006, and amended on 5 November 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 March 2003, and handed down on 22 April 2003, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

The Court Book

The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be ascertained.

The Applicant

The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 4 December 2001. He applied for a protection visa on 20 December 2001 (CB 1 to CB 28). The applicant was assisted by a migration agent in making this application (“Mrs ZHU” – CB 11). The applicant’s claims to protection were that he was a Falun Gong practitioner in China, that Falun Gong was “officially regarded” as an “illegal organisation” in China, and that at the end of July 1999 he came to the attention of the authorities in China and was detained. He was released when he conceded that Falun Gong was illegal. He was also detained in May 2000 and “tortured and severely beaten in jail”. In August 2001, he was again arrested and detained for one month. He sought protection from the Australian government (CB 26).

Before the Delegate

The applicant was interviewed by the delegate on 7 February 2002. The delegate’s summary of what was said at the interview is at CB 39. The applicant also provided further documentation in support of his claims (CB 40 to CB 67).
The delegate refused the application on 13 March 2002. The delegate had “serious concerns” regarding the applicant’s credibility. The matters informing that finding are set out in some detail in the decision record (reproduced at CB 71 to CB 74). The delegate refused the application because he said he had “reached a positive state of disbelief concerning the claims advanced by the applicant” (CB 74.5).

Before the Tribunal

The applicant sought review by the Tribunal on 4 April 2002 (CB 75 to CB 80). The applicant was again assisted by the same migration agent (CB 76).
The applicant was invited to, and attended, a hearing before the Tribunal on 18 March 2003 (CB 88). The Tribunal’s decision record (CB 96 to CB 108) contains an account of what occurred at the hearing (CB 101.4 to CB 102.2 for the applicant’s evidence before the Tribunal).
At the hearing the applicant was reported as having claimed that he had not practised Falun Gong in public in Australia, but had done so at home (CB 101.6). He told the Tribunal that he had attempted to “practise privately” in China, but he was “noticed” by the authorities and detained, and that he was subsequently put on a “black list” so that he would encounter difficulties if he were to return. The applicant claimed that the security authorities in China considered him to be a “Falun Gong organiser” and that he would be arrested “immediately upon return” (CB 101.9).
The Tribunal found that the applicant had made no contribution to the Falun Gong movement in Australia and had “exaggerated” the extent of his involvement with, and commitment to, Falun Gong in China (CB 106.1). The Tribunal “considered” that the applicant did not have a high level of commitment to Falun Gong as he had claimed and that, while it was possible that he practiced Falun Gong in private in Australia, this was consistent with his degree of commitment to Falun Gong overall (CB 106.4). The Tribunal found that, given the independent country information available to it which noted that authorities in China were “less interested in individual members practising alone than those actively propagating Falun Gong as a ‘core’ member” (CB 106.6), that if he so wished, he could maintain private practice if he were returned to China.
The Tribunal was satisfied that, having regard to the applicant’s evidence, he was not “actively propagating Falun Gong as a ‘core’ member” (CB 106.7), and there was “no basis” to conclude that the applicant had a well-founded fear of persecution if he were to return to China, given circumstances where he had travelled to Thailand, and then returned to China, and that his “current” practice was done in private (CB 106.8). Nor could the Tribunal find any “credible evidence” to suggest that he would be viewed by the Chinese authorities as a core or diehard Falun Gong follower. The Tribunal found that it did not accept that he could not practise in China in the same manner as he did in Australia, and with the same level of commitment. In these circumstances, it was satisfied that there was no real chance of the applicant suffering serious mistreatment amounting to persecution for reason of his belief in Falun Gong (CB 106.9).
The Tribunal doubted the applicant’s claims that he was a leader and a Falun Gong practitioner in China, and doubted that he had left China with a criminal record as he claimed (CB 106.10 to CB 107.2). But, in any event, it found that if he had been “once involved in Falun Gong in China”, it could be satisfied that his “lack of participation in Australia” was a “clear indication that he is not longer interested in or committed to anything other than individual practice at home” (CB 107.3). The Tribunal noted independent country information before it that certain Falun Gong practitioners would be at risk of persecution in China, but after consideration of the applicant’s claims and evidence, it found that the applicant would not fall into one of the categories of people who “may” face persecution (CB 107.4). In all, therefore, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations and it therefore affirmed the decision under review.

Hearing before the Court

At the hearing of this application before the Court, the applicant was represented by Mr A Crossland of Counsel. The first respondent was represented by Mr J Mitchell of Counsel. The hearing of this matter was conducted over two separate days some considerable time apart.
On the first occasion the applicant was granted leave to file an amended application. The application is in the following terms:
“The Grounds of the Application are:
1.The Tribunal’s finding that the Applicant did not have ‘a well-founded fear of persecution’ involved an error of law in that
(a)The Tribunal misunderstood, or misdirected itself, as to the finding that would be required in order to conclude that the Applicant did not have such a fear;
(b)There was no evidence for a finding (and no basis for a reasonable inference to the effect) that there was no real chance of such persecution;
2.The Tribunal erred in that it did not take account of the contents of relevant material.
Particulars
The Tribunal did not:
(a)Try to reconcile the contents of US Department of State’s International Religious Freedom Report 2002 with the contents of the various reports of DFAT (each of which the Tribunal relied on);
(b)Give the US Department of State’s report careful and special attention.
3.The Tribunal erred in that it did not take into account evidence corroborating the Applicant’s claims of persecution while in China, namely medical certificates and a warrant of arrest.
4.The Tribunal erred in that it did not take into account the probability that the Applicant suffered persecution and injury while in China by reason of his Falun Gong practices.
5.The Tribunal failed to conduct a review in that it did not deal with the claim that in China the authorities detained him after finding that he had practiced Falun Gong in private.
6.The Tribunal erred in that it took into account and made findings based on irrelevant material, namely certain reports of DFAT (CX38557 and CX57264).
Particulars
CX38557 and CX57264 were irrelevant because they were too old.”
(Mr Crossland subsequently submitted that the applicant did not press ground six.)

Evidence

The applicant’s affidavit of 22 October 2007 was read into evidence before the Court. The applicant was cross-examined by Mr Mitchell on the issue of the delay in making this application to the Court. (Tribunal decision of March 2003, “notified” in April 2003. Application to the Court: January 2006.)
Also put in evidence before the Court was the affidavit of Grace Chen of 30 November 2007 with annexures, and the affidavit of John Bird, solicitor in the employ of the respondent’s solicitors, of 24 April 2006, but only as to paragraphs [1], [2] and [3] of that affidavit.

Consideration

The Tribunal’s decision is affected by jurisdictional error. I have difficulty accepting the applicant’s arguments that such error is revealed by way of grounds two, four and five of the amended application, but do accept that ground three (and possibly ground one) does reveal such error. In my view, ground three clearly reveals such error, and I will deal with this. (There is also the interesting issue of whether the Tribunal’s finding (at CB 106.9: “I do not accept that he could not practice in China in the same manner he does in Australia …”) when read in context (“… he could maintain private practice if he returns to China”: CB 106.5) may fall foul of what the High Court said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 about expectations of behaviour and modifying behaviour on return to the country of claimed persecution.)

Ground Three

Ground three in the amended application pleads that the Tribunal was in error in that it did not take into account certain evidence which corroborated the applicant’s claims of persecution while he was in China. The pieces of evidence in this regard are medical certificates provided by the applicant and a copy of a warrant of arrest. These documents (with English translations) appear at CB 54, CB 55 and CB 42 to CB 46. (Noting also the annexures to the affidavit of Ms Chen.) The applicant relies on what was said by the majority in WAIJv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 (“WAIJ”) in particular at [27], and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 (“NAJT”) at [205].
Mr Crossland submitted that the Tribunal made some reference to these documents when setting out in its decision record the applicant’s claims (at CB 101.3):
“The Applicant provided various documents relating to his claimed involvement in Falun Gong and his arrests and medical treatment.”
The complaint is that the Tribunal had not properly considered these documents as it was required to do. Mr Crossland submitted that WAIJ requires that the Tribunal thoroughly consider documents which corroborate a claim, unless there has been some previous finding that the applicant’s evidence is not to be believed at all. His submission was that, in this case, the Tribunal did not even identify the specific documents beyond some general reference to arrests and medical treatment, let alone provide a thorough consideration of the documents. Nor was there any further reference to the documents elsewhere in its decision record.
In short, Mr Crossland’s submission was that these two documents went to the heart of the applicant’s claims in that they were documents that supported the applicant’s claims to have been arrested and beaten by the Chinese authorities. With reference to what is said in WAIJ (and NAJT) in relation to corroborative evidence, given the centrality of the importance of these documents, the Tribunal’s lack of consideration of that evidence was contrary to the obligation recognised in the authorities.
In response Mr Mitchell submitted that, notwithstanding that the Tribunal’s reasons are “characterised … by brevity”, the Tribunal did, in fact, turn its mind to a considerable amount of evidence, namely, the country information before it, the applicant’s written and oral claims, and the delegate’s decision, and that, in light of all of this, it assessed the credibility of the applicant’s claims as being lacking, in that he had “exaggerated” those claims. The Tribunal found that the applicant did not have that high level of commitment to Falun Gong that he had claimed to have.
Mr Mitchell referred the Court to the applicant’s statement provided in support of his application (see CB 77, and the central paragraph reproduced in the Tribunal’s own decision record at CB 100.5):
“In November 1999, when I led a group of people to practise the ‘Gong’ in Huan Shi Park, we were discovered by the detectives of the Public Security Bureau. They regarded me as the organiser and leader. Therefore, they detained me for investigation. (I have the evidence of the Detention Warrant of the Huang Shi Public Security Bureau). When I was in the detention cell, I was tortured and cruelly beaten. Then I was released through the help of some friends who used money to bribe the public security officer. I then went to the hospital for treatment. The diagnosis of the hospital was injuries to the right kidney and damages to the injured soft tissues. (There are medical and CT certificates from the First Hospital of Huang Shi City.”
Mr Mitchell drew the Court’s attention to the Tribunal’s relevant findings at CB 106.8:
“I find there that there is no credible evidence to suggest that there is a real chance that the Applicant would be viewed by the Chinese authorities as a core or diehard Falun Gong follower; or that he would refuse to obey the law, organise protest activity.”
Further at CB 107.2:
“I doubt that the Applicant left China with a criminal record as he claims as he returned to China from Thailand as he could not find employment did not seek to stay in Thailand or seek protection from UNHCR while there.”
He submitted that, particularly with regard to the first extract above, the Tribunal squarely addressed the applicant’s claim that he led a large group of Falun Gong followers to join the practice of Falun Gong, that he was detained by the security authorities because they regarded him as the organiser and leader, and that he was injured while in detention and subsequently received medical treatment at a hospital.
The submission is that, having found the applicant’s claims as to what had occurred in China to be “exaggerated”, and having rejected the applicant’s claims to have been regarded as a leader, or “core” Falun Gong member, by the authorities in China, these findings were based on the credibility of the applicant’s claims and directly address the evidence contained in the warrant and medical certificates.

Consideration

It is clear that the Tribunal did not make a specific reference to the arrest warrant or medical certificates in its “Findings and Reasons”. As a general proposition, I note that generally the Tribunal does not have to refer to every piece of evidence that is put before it (Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [68], [73]-[74] and [91]; Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; WAEE vMinister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]; Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79]). The Tribunal’s obligation is to deal with each of the applicant’s claims, and each integer of those claims.

The resolution of the applicant’s complaint does turn on properly understanding the Tribunal’s decision record and the analysis contained in it. The first respondent has put no other evidence before the Court to inform as to the Tribunal’s thought processes in this regard.
The applicant relies on what was said by the majority in WAIJ in relation to the Tribunal’s obligations as to how and when it is required to deal with corroborative evidence before it. In my view, the circumstances of this case also require consideration and understanding to be derived from what was relevantly said by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 (“S20/2002”).
The issues pleaded before the High Court in that case were that the Tribunal’s decision was irrational, illogical and not based upon findings supported by logical grounds, or inferences of fact supported by logical grounds, and bias or apprehended bias. The matter relevantly involved the rejection of the evidence of a corroborating witness because the Tribunal found the applicant’s story in that case implausible “and in some important respects unbelievable” (see [12] per Gleeson CJ). The argument advanced by the first respondent in the current case is that the Tribunal did not need to deal specifically with the corroborating evidence advanced by the applicant because the Tribunal had similarly rejected the factual basis of the applicant’s claims.
First, the importance of properly understanding the Tribunal’s reasons can be derived from what was variously said in S20/2002 (see [12] per Gleeson CJ: “…in my view, all that the member was saying …”, and [37] per McHugh and Gummow JJ: “…much depends upon the particular circumstances disclosed by the written statement required by s 430 of the Act …”).
In S20/2002, McHugh and Gummow JJ considered what the Tribunal had said about the applicant’s own evidence in that case. In resolving the matter at issue in this case, it is highly instructive to note what their Honours extracted from the Tribunal’s decision record and what the Tribunal in that case said about the applicant’s own evidence. It is also important to note this because it ultimately provides the context for the relevant principle enunciated by their Honours at [49].
At [42]-[44] of S20/2002:
“[42]In the tribunal’s statement of reasons, consideration in turn was given to the claims made by the appellant in this sequence. Thereafter, in the section of the written statement headed “findings and reasons”, and under the subheading “The applicant's credibility”, the tribunal said:
The Tribunal finds that the [appellant's] claims in his statement to the Department of Immigration, his written statement to the Tribunal and his oral evidence given at hearing were exaggerated, far-fetched and implausible and therefore lacking in credibility. In consideration of the [appellant’s] lack of credibility, the Tribunal cannot be satisfied that there is any real chance of the [appellant] being harmed for a Convention reason in Sri Lanka in the foreseeable future.
His claims and evidence were not only far-fetched, but also inconsistent with the independent evidence, and some notable inconsistencies in the [appellant's] evidence that suggest the [appellant] has fabricated these claims.
In particular the Tribunal does not accept as credible or plausible the [appellant's] claims and evidence that:
• He was arrested on suspicion of supporting the LTTE as a result of having given residence to two young Tamil men
• His whole family have “all been arrested and killed” by the Sri Lankan security forces.
[43]The tribunal then went on to elaborate its conclusions on each of those latter two matters. In the course of dealing with the first, the tribunal said:
The [appellant] confirmed that he was “very good friends” with these two Tamils, yet when asked about them, he did not know where they came from; he did not know their surnames; he did not know and had never met their parents; he could not say where their parents resided; he could not say if they had any siblings. His physical description of each of them was extremely ill-defined.
[44]In dealing with the second matter, that concerning the fate of the appellant’s family, the tribunal said:
In light of:
• the remarkable lack of detail about the circumstances of the arrest and killing of the [appellant's] “whole family” and;
• the [appellant’s] extreme vagueness about the person who reported these events to him and what that person saw and;
• the [appellant's] claim that his family was arrested because of his “escape” from Sri Lanka and his evidence at hearing that he in fact left the country legally and without difficulty
And finally, because the Tribunal has made grave adverse findings … on the [appellant's] credibility in relation to his claims to be of interest to the Sri Lankan authorities, the Tribunal cannot be satisfied that the [appellant's] family have been arrested or killed. The Tribunal is satisfied that there could be any number of reasons for the [appellant's] family to be absent from their home, but whatever the reason, the Tribunal cannot be satisfied it is Convention related.”
Further, at [46]-[48]:
“[46]The ultimate finding by the tribunal was expressed as follows:
At the Tribunal hearing, the overall implausibility of the [appellant’s] claim to have been imputed with an LTTE profile was pointed out to him. The [appellant] was given the opportunity to respond to the Tribunal’s concerns but has been unable to do so in any meaningful way. Given the significant adverse findings on credibility in relation to the [appellant], the Tribunal cannot be satisfied that the [appellant] has a real chance of being persecuted for a Convention reason in Sri Lanka in the foreseeable future, and is therefore not satisfied that the [appellant’s] fear of persecution for a Convention reason is well founded.
[47]However, it is an earlier passage in the tribunal’s statement under s 430 of the Act which has attracted the greatest attention in submissions in this court. There, in what we shall identify as “the critical passage”, the tribunal said:
In light of the Tribunal's grave adverse findings on the [appellant's] credibility in relation to his claims to be of interest to the Sri Lankan authorities for any Convention reason, and further, in light of the [appellant's] behaviour after his arrival in Australia, namely his procrastination in making an application for protection and his assorted [and unsatisfactory] explanations for this delay, the Tribunal cannot be satisfied that the [appellant] has been truthful about why he left Sri Lanka or why he does not wish to return.
In light of the Tribunal’s findings above that the [appellant] thoroughly lacks credibility, and its findings that the [appellant] has misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the [appellant’s] witness, and gives no weight to this evidence. [emphasis added]
[48]It will be observed that the phrase “in light of” appears twice in the critical passage. As with the use of the phrase earlier in the statement of reasons, here also it identifies reasons for conclusions expressed. The tribunal has found not only that the appellant thoroughly lacked credibility, but also that he had misled the tribunal; that is to say, that the appellant had lied.”
Ultimately the expression of the following is critical to the resolution of the case currently before the Court. At [49] the High Court said:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
What I draw from the above relevant to the matter currently before the Court is that what was said at [49] (set out above) was said in circumstances where the Tribunal found that the applicant in that case “had lied”. This was not, as explained in [48](set out above), a situation where the applicant was found to lack credibility, but also that he had misled the Tribunal.
In WAIJ, the case relied on by the applicant, the Full Federal Court was presented with circumstances where an applicant from Iran gave the Tribunal two untranslated letters from Iran in support of her claims. The two documents were a letter from the applicant’s sister who remained in Iran, and a notice from the applicant’s former employer in Iran. In affirming the delegate’s decision, the Tribunal failed to refer to these documents submitted by the applicant.
What I relevantly draw from the judgment of the majority in WAIJ (per Lee and Moore JJ) is that in relation to the applicant’s claims (absent the corroborating evidence) the Tribunal had only reached a level of a lack of being persuaded, rather than having found, on the balance of probabilities, that it was satisfied that there was no well-founded fear of persecution for a Convention reason. That is, that there was no real chance of future harm if the applicant were to return to the country of claimed persecution.
I note in particular the following from the reasoning of the Court in WAIJ (at [18]):
“The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for, subject, of course, to the qualifications now contained in s 36(3)-(7) and subdivisions AK and AL of Division 3 of Part 2 of the Act. If the material does not show that such a risk exists the visa must be refused.”
At [21]:
“Failure of the Tribunal to act ‘judicially’ will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act ‘judicially’ and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a ‘tossing a coin’ or by making a ‘snap decision’ or by acting on instinct, a ‘hunch’ or a ‘gut-feeling’.”
I note also the reference to S20/2002 at [22], and in particular what was said by McHugh and Gummow JJ at [49] of S20/2002, at [27]:
“Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).”
Then in applying this to the circumstances in the case before it, at [28]:
“This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed ‘MKO’ newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.”
In relation specifically to that matter, I note at [39]:
“The Tribunal acknowledged that each of the foregoing ‘problems’ in the appellant’s evidence might not have been particularly significant but stated that when considered together, in conjunction with the failure of the appellant to disclose her fear of persecution at the ‘entry’ interview, it led to the conclusion that her claim of such a fear should be taken to be not credible. It may be thought that a point of little significance does not become significant when considered with other matters of minor weight. Indeed the acknowledgement of the Tribunal suggests that it did not use the word implausible to describe a circumstance that was inherently unlikely or beyond belief but to denote something not shown to have been likely or probable and to indicate that the Tribunal doubted that certain events had occurred as claimed by the appellant. As discussed earlier, in such a state of non-persuasion the Tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events had occurred as claimed.”
Therefore, what I understand their Honours to have said is that it is not open to the Tribunal to reject, or more relevantly in the current circumstances, not consider, material that might have assisted it in one way or the other, in circumstances where it had only reached a conclusion as to the applicant’s factual claims, that is, the evidence given by the applicant, on the balance of probabilities being in a state of “non persuasion”, rather than having clearly rejected the credibility of the applicant’s claims, in which case no corroboration could undo that finding.
This is the circumstance where their Honours said at [27] that “the applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily such findings are likely to negate allegedly corroborative material …” (noting there the reliance on S20/2002 at [49]).
Turning now to consider the application of the principles above to what the Tribunal in the current case has done. I note that the Tribunal found that the applicant had “exaggerated the extent of his involvement with and commitment to Falun Gong in China” (CB 106.2). Some attention must be given to the word “exaggerated” as used by the Tribunal.
In saying this I accept, however, the submission made by Mr Mitchell that a Tribunal decision should not be read “finely with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), quoting Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456.
I note more fully what was said in this regard in Wu Shan Liang (at 272):
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
I also note further, however, what was said in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J at [26] in relation to what was meant by the High Court in Wu Shan Liang:
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
The Shorter Oxford English Dictionary (On Historical Principles) (Oxford: The Clarendon Press, Oxford University Press, 1973) defines “exaggerated” as:
“1.Unduly magnified or inflated.
2.Abnormally enlarged”
The Macquarie Dictionary (Sydney: The Macquarie University Library, 1997) defines “exaggerated” as:
“1.Unduly magnified.
2.Abnormally increased or enlarged.”
What then were the applicant’s claims put before the Tribunal, and what was “exaggerated” in the “extent of his involvement with and commitment to Falun Gong in China”.
Any plain reading of the material before the Court reveals that the applicant claimed that he actively practised Falun Gong in public prior to November 1999, that he was a leader of a large group of followers “under my promotion and instruction” (see CB 64.4), that in November 1999 when leading such practice in a park he was discovered by local security police, that he was regarded as the “organiser and leader”, and was detained for investigation. While detained he claimed to have been tortured and “cruelly beaten”. Following his release he continued to practise Falun Gong, but it appears that he conducted such practice “secretly” (CB 64.8). Nonetheless, he was found by the authorities in May 2000 and again detained and tortured in detention. Again, he continued to practise secretly but was again arrested and detained by the security authorities in August 2001 because he was perceived to be a leader of Falun Gong (clearly relating to the circumstances in November 1999) (CB 64.9).
The Tribunal clearly, initially, understood the applicant’s claims in this regard. It set them out in its decision record at CB 100.4 to CB 101.3. In particular, it noted: “the applicant provided various documents relating to his claimed involvement in Falun Gong and his arrest and medical treatment”.
In relation to the Tribunal’s consideration of the applicant’s factual claims, Mr Mitchell submitted (albeit with reference to the applicant’s complaints under ground one, but nonetheless relevant to the issue relating to ground three) that in relation to the three relevant instances of past harm that the Tribunal made a clear credibility finding in relation to the applicant, and that was that the applicant had “exaggerated the extent of his involvement with and commitment to Falun Gong in China” (CB 106.1). That further, this credibility finding was pursued in its analysis with reference to what follows at CB 106 and CB 107.

In essence, Mr Mitchell’s submission was that when read fairly the Tribunal’s analysis was that the applicant’s claims to have been involved with and committed to Falun Gong in China were “exaggerated”, and that the most that the Tribunal was prepared to accept was that he may have engaged in private practice of Falun Gong in Australia and that this clearly dealt with the applicant’s claim to have been in a leadership role of Falun Gong in China and to have practised in public. The Tribunal doubted that this was the case but in any event found that (at CB 106.7):
“…there is no credible evidence to suggest that there is a real chance that the Applicant would be viewed by the Chinese authorities as a core or diehard Falun Gong follower; or that he would refuse to obey the law, or organise protest activity.”
The findings as to the credibility (or as I understood it, the degree of credibility) of the applicant’s claims were for the Tribunal to make (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
In all, therefore, I understood Mr Mitchell’s submissions to be that the Tribunal found the applicant’s claims to be “exaggerated” and it did not accept the applicant’s claims as they related to China. But even if it did accept that the applicant had practised Falun Gong privately in Australia there would be no reason that he would be persecuted if he went back to China and continue to practise privately in the same way. That the Tribunal in this regard relied on independent country information which indicated that it would be unlikely that such practitioners (that is, those who practise privately) would be the subject of persecution.
Mr Mitchell submitted the Tribunal’s general findings deal with the applicant’s claims to being a leader of Falun Gong and deal with his claims. In all, he submitted that the Tribunal therefore did not need to go through each specific aspect of each claim to have suffered past persecution and make a finding in relation to each. (Relevant also in particular in answer to ground one.) That in all the Tribunal dealt with each aspect of the applicant’s claims and that this was subsumed in general findings.
Had the Tribunal’s findings and reasons ended at the end of the third full paragraph at CB 106 (that is, excluding the last line on that page), I may possibly have been persuaded to the first respondent’s submissions. Read fairly it may be said that the Tribunal distinguished between the applicant practising in public from practising Falun Gong in private, and that he was not a “core member” of Falun Gong in the sense that it found he did not actively propagate, that is, lead, public exercise sessions of Falun Gong.
The Tribunal’s reasoning was that in circumstances where it was satisfied that the applicant was not actively propagating Falun Gong as a core member, and in circumstances where the independent information before it indicated that only certain Falun Gong practitioners would be at risk of persecution in China, and that the applicant’s claims and evidence revealed that he would not fall into one of those categories of people who “may” face persecution (CB 107.4), it was satisfied that there is “no real chance that the Applicant would face serious mistreatment amounting to persecution for reason of his belief in Falun Gong” (CB 106.9). Further, that even if he was involved with Falun Gong in China, it did not accept “that the Applicant is still a dedicated Falun Gong practitioner to such an extent that he will be subjected to further harassment or mistreatment amounting to persecution upon return to China” (CB 107.5).
In none of this did the Tribunal make any reference to the medical and arrest documents provided by the applicant.
The issue, however, for the Court is whether in its reasoning the Tribunal found that the applicant’s credibility was “so weakened” that the documents “proffered as corroborative evidence” were treated by the Tribunal as being “of no weight because the well has been poisoned beyond redemption”.
It is not clear what exactly the Tribunal found as being “exaggerated” in the applicant’s claims. It said he “exaggerated the extent of his involvement with and commitment to Falun Gong in China”. But even on a fair reading it is not clear what it accepted, nor what was views as the exaggeration, and therefore presumably not accepted. It could be that even when read at the fairest level what the Tribunal was seeking to say was that the exaggeration of his claims was that he “may” have practised in private, but that it did not accept that he practised in public and not in a core or leadership capacity. But the absence of any clear findings to inform this conclusion leaves the matter open to doubt.
I should just note in this regard that decision records are meant to inform. In the case of the Tribunal the decision record needs to reveal enough of its thought processes such that gaps in reasoning are not left to courts to decipher. As Mr Crossland correctly submitted it should not be necessary for the Court to have to join “too many dots”. It is trite to say findings of fact need to be clearly made. Where doubts exist, alternatives need to be considered. (For example, the “what if I am wrong test?”: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. See also Abebe v Commonwealth (1999) 162 ALR 1.)
I do not see, whatever the situation, that this finding amounts to a “comprehensive finding of dishonesty or untruthfulness” on the part of the applicant such that his evidence was “discredited” (with reference to WAIJ at [27]). At best, what can be said, again with reference to the requirements set out S20/2002 and WAIJ, is that the Tribunal, on balance, was not convinced that the applicant’s circumstances amounted to a well-founded fear of persecution. (That is, those parts of the applicant’s claims that were “not exaggerated” and which remained after it excluded those other parts of his claims that it did not accept – whatever they may have been.)
In the current case the Tribunal has left too many gaps in its reasoning process. (For example: just what was found to be exaggerated in the applicant’s claims, did the Tribunal make a finding that the applicant practiced Falun Gong “privately” in Australia – “It is possible” – CB 106.5.) This issue is also relevant to any consideration of ground one.
As I understood at was set out in WAIJ, the Tribunal (with reference also to S20/2002) is required to make a clear finding as to the rejection of the applicant’s claims on the basis of a lack of credibility before it can proceed to not consider corroborative evidence put in support of those claims.
Even if I were to accept (perhaps and possibly) that the use of the word “exaggerated” did not detract from having made such a finding (noting that the Tribunal in S20/2002 also used that word (but only in part) to describe the applicant’s claims in the case before it (see S20/2002 at [42])), the subsequent reference on two occasions to “doubt” on the part of the Tribunal (see CB 106.10 and CB 107.2) reveals (and in particular when the Tribunal’s findings and reasons are read holistically) that the Tribunal did not make a finding that the applicant thoroughly lacked credibility let alone that he had “misled the tribunal” (S20/2002 at [48]).
This is particularly so given that the two issues in relation to which the Tribunal expressed “doubt” were two issues central to the applicant’s claims, and the two issues in respect of which the documents, of which it made no mention in its analysis, could have been directly corroborative.
The applicant claimed to have been “a leader and a Falun Gong practitioner in China” (CB 106.10), but the Tribunal said “I doubt this to be true”. Further, the applicant said that he had been subject to “an arrest warrant”, which the Tribunal apparently understood (in context) meant that the applicant had a “criminal record”. (There was no other relevant evidence before it.) Yet again, the Tribunal said that it doubted this to be the case (CB 107.2). The arrest warrant in particular could have provided some corroboration of the latter “doubt”, and both documents were relevant to the issue of whether he was a leader of Falun Gong in China and therefore a subject of interest to the authorities.
Nothing that the Tribunal accepted, based on independent information before it, would have put the applicant into the category of those who “may” face persecution (CB 107.4). (The use of the word “may” is also problematic in this context.)
I should note that in S20/2002, even though the Tribunal used the word “exaggerated” to describe the applicant’s oral evidence given at the hearing before it, it gave comprehensive reasons in its analysis as to why this was the case, and further found the applicant’s evidence to be far-fetched and implausible. It appears from the extracts quoted above from S20/2002 as set out in the High Court’s judgment that the Tribunal set out its analysis with an appropriate level of detail such as to justify, support, and display its ultimate clear conclusion as to the applicant’s lack of credibility. I cannot see that the Tribunal has done so in the current case.
In all, therefore, to the extent that the first respondent seeks to rely on what was said in S20/2002 at [49], I cannot see that this can assist the first respondent in the current circumstances.
The Tribunal in the current case plainly doubted the applicant to have been a Falun Gong leader. Without again focusing on one word, I cannot help but notice that at CB 106.10 the Tribunal seems to express doubt that he was a Falun Gong practitioner at all in China, noting that the words used are: “the applicant claims that he was a leader and a Falun Gong practitioner in China but I doubt this to be true …”.
Yet elsewhere in its analysis the Tribunal appears to accept (at the very least implicitly) that he did practice Falun Gong at least secretly in China, or rather not as a core member. If the applicant “exaggerated” the extent of his involvement with Falun Gong in China (that is he unduly magnified or enlarged his claims), this logically leaves the situation that some of his claims were true. As the Tribunal said: “… he would maintain private practice if he returns to China” (CB 106.5).
In SZCBT Stone J cautioned against reading Wu Shan Liang as intending to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. When read as a whole there is in my view clear ambiguity (at the very least in the sense of the basis on which the Tribunal rejected the factual aspects of the applicant’s claims, and indeed what factual aspects it rejected, that is, what was exaggerated and what did it doubt), such that it cannot be said that there was a comprehensive finding as to the applicant’s lack of credibility such as to permit it ignoring, or not dealing, with two pieces of corroborative evidence that went squarely and directly to the very issues about which it expressed doubt.
This is not even a case, as appeared in WAIJ, where the Tribunal actually turned its mind to the corroborative evidence (and as in S20/2002 where the Tribunal “rejected the evidence of the corroborating witness” (at [12])). In the current case, having failed to make a clear and comprehensive finding as to the applicant’s credibility (a finding at best which was based on conclusions of exaggeration, and of doubt), the Tribunal did not even make any mention of the corroborating documents at all in its analysis. In my view, given what is set out in relevant authorities referred to above, the Tribunal’s failure to do so does reveal jurisdictional error on its part.

Delay in seeking judicial review

As referred to above, there was a delay of approximately two years and nine months between the notification of the Tribunal’s decision and the application to this Court.
Plainly, the relief that the applicant seeks, that of certiorari and mandamus, is discretionary. Where jurisdictional error is found, then in the exercise of the discretion pertaining to the relief sought by the applicant (certiorari and mandamus), regard should be had as to whether there was some disentitling conduct, or whether granting the relief would be a futile gesture. (As to disentitling conduct see, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [53], per Gaudron and Gummow JJ, and SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [80], per McHugh J. See also Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67, per McHugh J.)
The delaying in seeking review in this context may be such disentitling conduct.
The applicant gave evidence, and was cross-examined, before the Court in relation to the issue as to why he delayed in making his application to the Court. His evidence was that he knew of the Tribunal’s decision soon after it was handed down. That his migration agent gave him a copy of the Tribunal’s decision in about April or May 2003. (I should just note that the name given by the applicant as to his migration agent does not appear to correspond with the name of the agent appearing in the relevant part of the application for review (CB 76). Nonetheless, no issue was taken, and I accept the applicant had engaged the services of a migration agent and relevantly dealt through that agent.)
Mr Mitchell submitted that in cross-examination the applicant gave evidence that he knew that he had certain rights and in particular and at least had “some conception” that he had the right to appeal from at least April or May 2003. Mr Mitchell referred the Court to the applicant’s evidence in re-examination, in particular that the applicant knew that he had a right to appeal to the Federal Court or that at least had a right to appeal to a court, but chose instead with the assistance of his migration agent to write to the first respondent seeking intervention pursuant to s.417 of the Act.
To the extent that it may be said that the applicant chose between two alternate courses not to pursue judicial review, but to seek ministerial intervention then I would not generally regard such a course of action as an adequate explanation to explain the delay. (See Applicant A2 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 576 at [9], Batuwantudawa, in the matter of an application for Writs of Certiorari and Prohibition against Ruddock [2003] FCA 684 at [9], Re Ruddock; Ex parte LX [2003] FCA 561 at [42], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [12], Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186 at [18]-[20]. See also Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 186, Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 at [14], M211 of 2003 v Minister for Immigration and Multicultural Affairs (2004) 212 ALR 520; [2004] FCAFC 293 at [22]-[24], S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283, SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 at [18]-[20], SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683 at [25]-[26]. See contra: Applicant M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [6], NAGG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 84, SZHEH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1301, SZEEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 661.)
However, the circumstances of this case in my view do present an adequate explanation as to why the applicant did not seek judicial review at any time earlier than he did. In my view, while there were some aspects of the applicant’s evidence that may be described as vague, what essentially came through was that the applicant relied on his migration agent both in the conduct of his case before the Tribunal, and subsequently. His unchallenged evidence was that his agent told him of the adverse Tribunal decision, but also told him that he could not appeal to the Court. In my view, the applicant’s evidence was unchallenged in this regard, and I found his evidence generally to be credible. The applicant’s evidence was that even when friends told him that he could appeal to the Court that he put this to his agent, but that she insisted that he could not appeal. Further, that he asked her this question a number of times in 2004 and 2005.
The applicant arrived in Australia in December 2001 and sought protection within about two weeks of his arrival. He was assisted by an agent in that process, the same agent who appears to have assisted the applicant through the process of the review by the Tribunal. There was no evidence before the Court that the applicant could speak, read or write English. In all the circumstances, I found it quite plausible that a newcomer to this country without relevant language skills, and with no prior knowledge of how the protection visa application “system” operates, would seek to rely on a migration agent who appears to be from the same ethnic background and who speaks the applicant’s language.
Further, in my view it is also plausible that even over a period of over 2-and-a-half years that the applicant would continue to rely on his agent. I did consider the fact that the applicant gave evidence that his friends told him that he could appeal to the Court, but in my view it is quite a plausible explanation that the applicant preferred the advice of his migration agent who, after all, would be expected to be well-versed in such matters, over the advice given by friends in the community.
Even if it can be said that the agent’s advice was not that he could not appeal but that the chances of success in the Court were low, or negligible, and that that was the meaning of what he was told, but that the applicant misunderstood, then what still remains even in that circumstance (noting that there was no evidence from the agent before the Court), the applicant again was relying on his migration agent and did not seek judicial review at an earlier time in reliance on that advice. That, in my view, is an adequate explanation as to why he did not make the application earlier. Nor is it implausible that the agent in early 2006 ultimately agreed to help him in this regard. Plainly, the applicant’s evidence was that the agent acted in this way because of the applicant’s insistence, ultimately, on appealing to the Court.
This is not a case, as sometimes seen in this Court, where an applicant is refused by the Tribunal at some earlier point in time, usually some years earlier, is then located and detained by the first respondent’s Department, then makes an application after being detained, and then seeks to lay blame on the migration agent either by way of negligent advice or conduct, or even in some circumstances, by alleging fraud. There is nothing of that nature in the current case.
The applicant remained in the community, on the best evidence available to the Court, throughout the entire period (noting that some of that time the applicant would have been awaiting a response from the Minister to be s.417 request). The relevant scheme of the Act is that a person within Australia who is not a citizen must have a visa to remain in Australia. The Act compels the Minister to detain and then remove those persons who do not have a visa, or any entitlement to a visa, unless some other visa is granted for whatever reason.
The applicant was allowed to remain in the Australian community. His unchallenged evidence was that he relied on his migration agent for advice and any action as to what could be relevantly done. Ultimately, at his insistence, the agent assisted him to seek judicial review.

I accept the applicant’s evidence in this regard and find that in all the circumstances I am satisfied that the applicant has provided an acceptable explanation for the delay in seeking judicial review.

Conclusion

In these circumstances it is appropriate, having found jurisdictional error in the Tribunal’s decision, that the orders sought by the applicant be made, and I will do so.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 25 August 2008