SZSHY v Minister for Immigration
[2018] FCCA 702
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 702 |
| Catchwords: MIGRATION – Judicial Review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant Protection visa – whether Tribunal misunderstood or misapplied the meaning of “real risk” when assessing whether applicants will suffer “significant harm” – whether Tribunal failed to consider integer of applicants’ claims – whether Tribunal was obliged to obtain evidence from persons who had given witness statements –in concluding documents and witness statements on which the applicant relied did not overcome credibility concerns whether the Tribunal actively engaged with the contents of the document and witness statements – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a) , 36(2)(aa), 36(2A), 48A, 65, 91R |
| Cases cited: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 |
| First Applicant: | SZSHY |
| Second Applicant: | SZSHX |
| Third Applicant: | SZSHW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 816 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| First Applicant on behalf of the Applicants |
| Counsel for the Respondents: | Mr N Swan |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 816 of 2017
| SZSHY |
First Applicant
| SZSHX |
Second Applicant
| SZSHW |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are citizens of India, apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicants a Protection (subclass 866) visa (Protection visa).
Background
The first and second applicants, who are husband and wife, arrived in Australia on 11 October 2009 on passports issued by the Republic of India.[1] On 19 November 2009 the first and second applicants applied for a Protection visa (first Protection visa application) which was refused by a delegate of the Minister on 16 July 2010. The delegate’s decision regarding the first Protection visa application was affirmed by the Refugee Review Tribunal (RRT) on 9 November 2012. A separate application for protection was also made on behalf of the third applicant, but that application, too, was rejected by the RRT. [2]
[1] CB1
[2] CB564, [2]
Claims for protection
By 9 December 2013 the third applicant had been born. On that date all three applicants applied for a Protection visa.[3] The applicants were entitled to do so, notwithstanding s.48A of the Migration Act 1958 (Cth) (Act), because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[4] It is only the first applicant (applicant), however, who made a claim for protection. The second and third applicants claimed protection as members of the applicant’s family unit.
[3] CB272-348
[4] [2013] FCAFC 71
In those sections of the form of application requesting information about his claims for protection, the applicant referred to “my full statement”.[5] I infer that this was intended to be a reference to the statutory declaration the applicant made which he lodged with the first Protection visa application on 19 November 2009 (Statement).[6] In the Statement the applicant claimed as follows:
[5] CB289-292
[6] CB25-36
a)The applicant was born into a Catholic family in Kerala, and began participating in church services when he was seven years of age. The applicant was also actively involved in the “Kerala Catholic Youth Movement” during his schooling.
b)From 1996 to 2000 the applicant studied for a Bachelor of Commerce degree at Kerala University. He there joined the Christian Liberation theology movement which “was fighting the Communist, BJP and Congress Ruling party”. The applicant also was in charge of a voluntary Catholic organisation known as “United Association of Latin Catholic”.
c)The applicant was “mercilessly” attacked by the “CPIM (Communist Party of India (Marxist) student’s wing SFI (Students Federation of India) and congress student’s wing in college premises”. There were also “many cases filed” against the applicant by the state because the applicant used to educate fishermen “against CPIM political party and Congress Party’s corruption and casted [sic] based politics”.
d)In 1999 the applicant organised a demonstration with other human rights groups and young Christian youth groups against Indian ruling BJP political parties in defence of minority groups in India.
e)In 2002 the applicant joined the Indian Gospel Church. That was a national movement for propagating the teachings of Christ and Catholic beliefs. As part of that movement the applicant went to Sudargah District in Orissa State and “started missionary works there”.
f)In 2003, when the applicant’s “team” was teaching the Bible in Patrapali in a forest area, the applicant and the tribal people were “attacked brutally by the RSS, Bharathia Janatha Party, Bajrang Dal (Hindu military group) people nearly a gang of 20 people”.[7] The applicant “was tied to a Big Tree and lashed for three days”. After the police arrived and released the applicant, he was required to sign a “blank paper . . . stating that nothing should be revealed”.
g)In December 2004 the applicant and his team of six members were mercilessly attacked by a Hindu Extremist organisation called “Shiva Sena”. In the scuffle that ensued, one of the members of the extremist group was killed “by the hand of their own counter part”. The applicant and his team sought asylum at their headquarters because they feared they “will be implicated into murder charges”. Meanwhile, the police obtained the applicant’s identity card which he had lost during the scuffle, and the police registered a case against the applicant and five others for murder which is “pending in the court of Law”.
h)In 2005 the applicant went to Abu Dhabi on a visitor visa to search for a job. The applicant returned to India in 2006 and, in 2007, for the purpose of marrying. In 2008, while in Abu Dhabi, the applicant was humiliated and deported “because of my pro-Christian activities”.
i)In 2008 the applicant went to Sharjah to join a business partnership. In May 2009 someone reported the applicant to the authorities in Sharjah for involvement in anti-Islamic activities. That resulted in his business visa being cancelled, and the applicant’s being banned from entering that country.
j)In August 2009, at 2 am when the applicant was sleeping, the “shiva people and their Hindu fanatic groups were shouting slogans”, and “set ablaze my house”. The police subsequently registered a case “against unidentifiable persons of Shiva Sena”. The applicant, however, fears he will not get justice because if he is “available for a prosecution I reasonably apprehend that I will be killed at any time as they want to see that I am not appeared in court against them”.
[7] I take “RSS” to be a reference to the Rashtriya Swayamsevak Sangh.
Hearing before the Tribunal
As recorded in the Tribunal’s reasons for decision, the Tribunal questioned the applicant about his background, education, travel in and out of India, his past experiences in India and the United Arab Emirates (UAE), and why he would be at risk of significant harm if he returned to India; and that the applicant “essentially reiterated, in broad terms, his claims that he had been targeted by Hindu extremists in India because of his religious activities, most recently in 2009”.[8] The Tribunal raised with the applicant concerns it had about the credibility of his evidence. The Tribunal put to the applicants two items of information from the RRT’s decision record of 10 October 2014. The applicant said he wanted to respond in writing, and the Tribunal gave him time to do so.[9]
[8] CB571, [29]
[9] CB572, [31]
After the hearing the applicant appointed a migration agent who requested that the applicant be given further time to provide post hearing submissions.[10] The Tribunal granted the additional time; and on 5 August 2016 the agent provided a submission.[11] The agent stated the applicant “does not fully grasp the concept of supporting evidence and there has not been enough time for me to undertake research on his behalf”.[12] The agent noted that the applicant had given him a “list of issues which he says the Tribunal has asked him to address”, and the agent produced documents and statements in support of the applicant’s claims. In its reasons for decision the Tribunal identified and described in some detail the statements and other documents the applicant provided.[13] One of the documents is a statutory declaration made by the second applicant in which she stated that she lied to the RRT member at the hearing in October 2010 because she wanted to return to India as soon as possible.
[10] CB572, [32]
[11] CB411
[12] CB411
[13] CB573, [33]-[38]
The Tribunal invited the applicant to a further hearing. At that hearing the second applicant said she did not want to return to India. She claimed she would have problems in India because the applicant had problems due to his religious activities.
The Tribunal set out in its reasons the matters it raised with the applicants during the second hearing.[14] Relevant to the submissions the applicant made at the hearing before me is the request the applicant made that the Tribunal take evidence from two witnesses, SM and BA. In response to this request the Tribunal:[15]
advised the applicant that while it would attempt to contact the witnesses, it was concerned that these witness statements had not been provided at an earlier point in the protection visa application process.
[14] CB577, [43]
[15] CB577, [43]
Tribunal’s decision and reasons
The Tribunal found the applicant is not a credible witness,[16] and that he has not told the truth about his past experiences in India.[17] While the Tribunal was prepared to accept the applicant was a practising Catholic in Kerala, it did not accept the applicant was ever a Christian missionary in India, or that he travelled to other states in India to undertake missionary activities, or that he was involved in political activism about the rights of Christians in India, or that he engaged in any proselytising.[18] The Tribunal was also not satisfied the applicant was targeted by Hindu extremists, or that the applicant had witnessed a killing, or that the authorities have been searching for him in relation to any such incident.[19]
[16] CB583, [68]
[17] CB583, [69]
[18] CB583, [68]
[19] CB584, [68]
The Tribunal relied on matters that include the following:
a)The Tribunal found the applicant’s oral testimony about his past experiences in India to be “extremely vague and highly improbable”.[20] When, for example, the applicant was asked to identify the Hindu groups he claimed were trying to kill him, the applicant referred to the RSS and the BJP, but not to the Shiv Sena.
b)The Applicant was unable to explain adequately why anyone in India would still be searching for him over seven years after he left India.[21]
c)When the RRT discussed the claims with the second applicant, she said she did not recall her house being burned down. The Tribunal did not accept the second applicant’s explanation for not recalling to the RRT whether her house had burned, namely, that she deliberately lied to the RRT because she was misled about whether it would be possible for her to bring her child to Australia.[22]
d)Evidence the applicant gave before the Tribunal lacked the detail the applicant had provided on the previous occasions he stated or gave evidence about his claims. The Tribunal referred to the applicant’s evidence before the delegate that he was being sought by police from Orissa but that, after he escaped from Orissa the police did not want to find him because they wanted the Hindu groups to kill him. Before the Tribunal, however, when the applicant was asked whether there had ever been a case against him, the applicant said he did not know.[23]
e)The Tribunal found other aspects of the applicant’s evidence highly improbable. The Tribunal considered the applicant’s claim that he sought police assistance in relation to two attacks in 2009 difficult to reconcile with the claim that he is of adverse interest to the authorities because a case was brought against him for murder in Orissa.[24]
f)Although the applicant claimed he had studied theology at the University of Annamaiai, the applicant did not provide “any documentation of having completed such a study nor”, as the Tribunal put to him, did the “website of the University of Annamaiai make any reference to offering courses in theology”.[25]
g)Although the applicant claimed he was a committed preacher and missionary in India and the UAE, the applicant has not engaged in any proselytising in Australia.[26]
h)The applicant returned to India from the UAE on multiple occasions. That undermined the applicant’s claims that he feared being persecuted by Hindu extremists.[27]
[20] CB578, [50]
[21] CB579, [51]
[22] CB579, [53]
[23] CB580, [56]
[24] CB580, [56]
[25] CB580-581, [58]
[26] CB582, [59]
[27] CB582, [63]
The Tribunal also referred to the numerous documents and witness statements the applicant provided in support of his claims. The Tribunal noted that some of the documents do not support the applicant’s claims. The Tribunal referred to a document that purported to refer to the applicant’s uncle’s death which indicated the death was accidental. The Tribunal also referred to country information that indicates fraudulent documentation is readily available in India. In these circumstances, the Tribunal considered that the police reports, post mortems, and medical documentation the applicant provided “can be given limited weight”, and the Tribunal was not persuaded the documents are reliable.[28]
[28] CB582, [64]
The Tribunal was also not satisfied that letters and statements the applicant provided are reliable or genuine, at least to the extent they purported to corroborate the applicant’s claims.[29] In a passage that is relevant to ground 5 of the application, the Tribunal said:[30]
Furthermore, with respect to the numerous witness statements that were produced by the applicant after the hearing in July 2016, I was concerned that the applicant had not adequately explained why these statements were produced so late in the protection visa application process. Although the applicant sought to explain the late provision of these witness statements by claiming that he only obtained a migration agent after the first hearing and that he would have provided these witness statements earlier than he had been aware of the need to do so, as he acknowledged at the second hearing, he was represented by a migration agent during his first application for a protection visa. Moreover, as I put to the applicant, while I acknowledge some asylum seekers might be unaware of what documents to provide in support of their case, given the fact that the applicant has previously given evidence to the Tribunal on two separate occasions (in relation to his application and the application made on behalf of his daughter) and that he provided numerous documents with his first application for protection, I am not persuaded by the argument that he was not aware that such evidence should have been provided at an earlier point in time.
[29] CB582, [65]
[30] CB582-583, [65]
The Tribunal further noted that the witness statements from people purportedly resident in India are in English and state they were signed and affirmed on 27 July 2016. In response to the applicant’s request the Tribunal attempted to contact two witnesses, both of whom had provided identity documentation; but when the Tribunal attempted to contact these two persons, the calls went unanswered. The Tribunal further noted:[31]
Ultimately, although it is possible that the applicant has submitted statements written by people in India and Australia who know the applicant and want to support his efforts to obtain a visa in Australia, these witness statements amount to mere assertions and, on the evidence before me, they can be given little weight as they do not overcome my concerns (set out above) about the credibility of key elements of the applicant’s claims.
[31] CB583, [66]
The Tribunal also considered whether the applicants faced a real risk of significant harm because they were Catholics. The Tribunal was satisfied that Catholics in Kerala are commonly able to practice their religion in Kerala freely without being exposed to real risk of significant harm.[32]
[32] CB587, [79]
Judicial review hearing
All three applicants, who are not legally represented, were present at the hearing before me; and the applicant made submissions on behalf of all of them. Although the application contains six grounds of application, the applicant made submissions only in relation to ground 5.
Grounds of application
Ground 1
The first ground is:
The Tribunal misconstrued the risk of fear and harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk of life and fear of significant harm to the applicants upon their return to India (see SYG2227 v Minister for Immigration and Border protection (2015)
This ground does not disclose any jurisdictional error. It does not identify how it is said the Tribunal misconstrued or otherwise failed to understand the risk of fear and harm as set out s.36(2A) of the Migration Act 1958 (Cth) (Act).
In any event, the Tribunal correctly identified the criterion the applicants had to satisfy to be granted a Protection visa, namely, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of an applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.[33] The Tribunal also correctly set out the definition of “significant harm” given in s.5(1) of the Act. Given the Tribunal did not accept the applicant’s claims that he had been harmed because it did not accept the applicant was ever a Christian missionary in India, or that he travelled to other states in India to undertake missionary activities, or that he was involved in political activism about the rights of Christians in India, or that he engaged in any proselytising, or that the applicant was targeted by Hindu extremists, or that the applicant had witnessed a killing, or that the authorities have been searching for him in relation to such an incident, it was not necessary for the Tribunal to consider whether the applicants faced a risk of significant harm for any of these reasons. Having accepted the applicants were practising Catholics, the Tribunal did consider whether on their return the applicants would be exposed to a real risk of significant harm for that reason. The Tribunal, however, manifested no misunderstanding of s.36(2A) of the Act in considering and determining that question adversely to the applicants.
[33] CB565, [11]
Ground 2
The second ground is as follows (errors in original):
The Tribunal failed to consider properly the test whether the applicants would suffer serious harm a per a 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy the statutory obligation was a serious jurisdiction caused by the Tribunal.
This ground discloses no jurisdictional error. The Tribunal was not required to consider s.91R of the Act. That section, when it was in force, applied only for the purposes of applying the criterion provided for by s.36(2)(a) of the Act. That criterion was not relevant to the applicants’ claims because their previous applications for protection based on s.36(2)(a) of the Act were rejected by the RRT, and the only issue before the Tribunal was whether the applicants satisfied the criterions specified in s.36(2)(aa) of the Act.
Ground 3
Ground 3 is as follows:
The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a Christian activist who preached and proselytised to non-Christians in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view the applicant was a credible witness
It is true that an integer of the applicant’s claims for protection was that a Christian activist who preached and proselytised to non-Christians in India was at risk of harm from radical Hindus and could not access effective protection. That integer, however, was premised on facts the applicant claimed existed but which the Tribunal was not satisfied did exist. In those circumstances, it was not necessary for the Tribunal to consider whether a Christian activist who preached and proselytised to non-Christians in India was at risk of harm from radical Hindus and could not access effective protection; and that is because the Tribunal was not satisfied the applicant was ever a Christian missionary in India, or that he was involved in political activism about the rights of Christians in India, or that he was targeted by Hindu extremists.
Ground 3, therefore, also fails.
Ground 4
Ground 4 is as follows:
The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligation, the Tribunal engaged in a process of reasoning that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. The Tribunal’s decision was fundamentally influenced by not receiving evidence from the witness from India. The Tribunal did not try later of the day to contact my witness. At paragraph 66 of the Tribunal’s reasons for decision.
This ground appears to be directed to the Tribunal’s unsuccessful attempt to contact two of the persons who had given witness statements. The ground appears to consist of two claims. The first is that, by not attempting again to call the witnesses later in the day the Tribunal did not do all that it ought reasonably to have done to contact the two witnesses. The second is that the Tribunal was fundamentally influenced by not receiving evidence from the two witnesses.
Assuming the Tribunal was under a duty to do all that was reasonable for it to do to contact the two witnesses, I am not satisfied the Tribunal failed to discharge any such duty. First, it appears that the applicant requested the Tribunal to contact the two witnesses without stating any time at which the Tribunal should attempt to call them. There is nothing, therefore, to suggest that it was unreasonable for the Tribunal to contact the witnesses at the time it did attempt to call them. Second, it appears from the Tribunal’s reasons that the Tribunal had informed the applicant it had unsuccessfully attempted to contact the two witnesses, yet the applicant made no suggestion to the Tribunal that it would be able to contact the witnesses if the Tribunal made another attempt later in the day. [34] That indicates that the applicant himself did not have any expectation that the Tribunal would be able to contact the witnesses if it made a further attempt; and from that is it reasonable to infer the Tribunal itself ought not reasonably to have expected that it would be able to contact the two witnesses had it attempted to do so later in the day. Third, and in any event, there is nothing to suggest that that the Tribunal would have succeeded in contacting the witnesses had the Tribunal made another attempt later in the day to contact them.
[34] CB583, [66]
I also do not accept the Tribunal was fundamentally influenced by not having received evidence from the two witnesses. In its reasons for decision, the Tribunal records that it informed the applicant that, even if it had been able to contact the witnesses, the Tribunal may only have been able to place limited weight on their evidence “as taking evidence from witnesses overseas by telephone can be problematic”.[35] From this it follows that even if the Tribunal had been able to contact the two witnesses and take evidence from them, it is unlikely the Tribunal would have given the evidence much weight. That, in turn, implies that the Tribunal’s decision was not fundamentally or even materially influenced by its inability to contact the two witnesses and obtain their evidence over the telephone.
[35] CB583, [66]
To the extent ground 4 is intended to suggest the applicant relies on other matters for claiming the Tribunal’s reasoning was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, it does not identify what those other matters are. In any event, there is nothing in the Tribunal’s reasoning to suggest the Tribunal acted irrationally, illogically, or on the basis of finding or inferences of fact not supported by logical grounds.
Ground 4, therefore, also fails.
Ground 5
Ground 5 is as follows (errors in original):
The Tribunal constructively failed to exercise its jurisdiction.
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing the substance of the documents corroborated his claims.
Although not stated, this ground may be taken to claim the Tribunal made a jurisdictional error of the sort the Full Federal Court found the Tribunal made in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs.[36] In that case the Tribunal said it gave no or little weight to documents on which the visa applicant relied because the documents did not overcome the problems the Tribunal had with the visa applicant’s evidence. Lee and Moore JJ said (omitting references):[37]
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
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 . . . . 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.
[36] [2004] FCAFC 74
[37] [2004] FCAFC 74 at [25] and [26]
As I have noted elsewhere,[38] this part of the Full Federal Court’s judgment must be read with the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZNSP.[39] There, the Tribunal found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the applicant, the Tribunal decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[40] The Full Federal Court said:[41]
[I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[38] SZSEI & Anor v Minister for Immigration & Anor [2017] FCCA 1820 at [25]
[39] [2010] FCAFC 50 (North, Lander and Katzmann JJ)
[40] [2010] FCAFC 50 at [13]
[41] [2010] FCAFC 50 at [33] (North and Lander JJ; Katzmann J agreeing at [42])
More recently, Burley J reviewed these and other cases in SZVHO v Minister for Immigration and Border Protection.[42]
[42] [2016] FCA 1499
It is true the Tribunal first assessed the credit of the applicant and then, in the light of that assessment, considered the weight it should give to the documents and witness statements. As the Full Federal Court held in SZSNP, however, it was reasonably open to the Tribunal to take that approach. Further, in taking that approach the Tribunal did engage with and consider the weight that it should give to the documents and witness statements the applicant produced. As I have already noted, the Tribunal identified and described the contents of each of the documents and witness statements the applicant produced. The Tribunal then considered the weight that should be given to the documents and witness statements, and relied on a number of matters for giving them little weight. In relation to the documents the Tribunal relied on the fact that some of the documents did not on their face support the applicant’s claims, and country information to the effect of the ready availability of document fraud on India. As for the witness statements, the Tribunal relied on the late production of the witness statements, the Tribunal’s rejection of the applicant’s explanation for not having produced these documents earlier, and the Tribunal’s assessment that the witness statements amounted to “mere assertions” given by people who know the applicant and who want to support his efforts to obtain a visa in Australia.
At the hearing before me, the applicant submitted the Tribunal should not have given the documents and witness statements he produced little or no weight only because the applicant produced the documents and witness statements late. That submission incorrectly assumes that the only reason on which the Tribunal relied for giving little or no weight to the documents and witness statements was their late production. Although the Tribunal did rely on the applicant’s late production of the documents and witness statements, it also relied on other matters which I have already noted. It was reasonably open to the Tribunal to rely on the later production of the witness statements and documents together with those other matters for concluding it would them little or no weight.
At the hearing before me the applicant explained why he had not provided the statements and documents to the Tribunal earlier than he did. It was for the Tribunal, and not for me, however, to determine whether to accept the applicant’s explanation for the late production of the documents and witness statements. The Tribunal, for reasons on which it was reasonably open to it rely, did not accept the applicant’s explanation.
Finally, the applicant asserted the Tribunal member rushed to make her decision. There is nothing before me that could reasonably support the applicant’s assertion.
Ground 5, therefore, also fails.
Ground 6
Ground 6 is as follows:
The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reasons for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
This ground does not identify the information of which the applicant claims the Tribunal failed to give particulars. For that reason alone, the ground fails.
Disposition
The applicants have failed to establish any of the grounds set out in the application. I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 23 March 2018
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