SZUDO v Minister for Immigration

[2017] FCCA 2064

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2064

Catchwords:
MIGRATION – Judicial review – partner visa – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360
Migration Regulations 1994, r. 820.211

Cases cited:
Minister for Immigration v SZLFX [2009] 238 CLR 507
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
SZBEL v the Minister [2006] 228 CLR 152
SZBYO v the Minister for Immigration [2007] 81 ALJR 1190

Applicant: SZUDO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 813 of 2016

Judgment of: Judge Howard

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Brisbane

Delivered on: 10 August 2017

REPRESENTATION

Solicitors for the Applicant: Essen Lawyers

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 813 of 2016

SZUDO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT
(As corrected)

A.These reasons were delivered ex tempore on 10 August 2017 and have been settled and corrected for grammatical errors on 21 September 2017 in order to convey the precise intention of the Court.

1. In relation to this matter, the applicant today has been represented by Mr Nguyen, solicitor.  The applicant is not here personally at the moment; apparently he is in Perth.  The first respondent Minister is represented by Mr Pinder, a solicitor from Minter Ellison. 

2. The applicant in this case is a citizen of Egypt.  He first arrived in Australia in April 2008, pursuant to a student visa.  That visa expired on 20 April 2013, at which time the applicant applied for a protection (class XA) visa. 

3. The applicant’s application for a protection visa was unsuccessful; it was refused in July 2013 by a delegate’s decision.  The applicant then applied to the Tribunal.  The decision of the Tribunal was to affirm the decision of the delegate and that occurred on 4 March 2014.

4. The applicant then applied to the Federal Circuit Court of Australia for judicial review but he withdrew that application.  The matter that is now before this Court relates specifically though to the fact that, on 11 April 2013, the applicant applied for a partner visa, listing as the sponsor Taylor Marie Curran.  On 7 April 2015, the Department – that is, the Minister’s Department – wrote to the applicant inviting further information.  One of the main issues is the fact that criterion 3001 of schedule 3 to the Migration Regulations 1994 (Commonwealth) required the partner visa application to have been made within 28 days of his last substantive visa ceasing.

5. Now, his last substantive visa ceased on 20 April 2013 and so it can be seen that it would have been a date in May of 2013 by which time he should have made his application.  Now, having not made the application within the 28 day limit, he was invited to provide further information as to whether there were compelling reasons for waiving the schedule 3 criteria.  It seems he did not respond to that letter.  In any event, in June of 2015, a delegate of the Minister refused to grant the partner visa application because the delegate was not satisfied that the applicant and his sponsor were in a genuine spouse relationship.

6. Also, the delegate was not satisfied that the applicant had met the schedule 3 criteria, nor was the delegate satisfied that there were compelling reasons for waiving the schedule 3 criteria.  So, on 30 June 2015, the applicant applied to the Tribunal - which is now of course known as the Administrative Appeals Tribunal – applied to that Tribunal for a review of the delegate’s decision.  There is, in the court book which are bundled together – the court book is exhibit 1 – there are letters dated 18 May 2016 and 8 June 2016 whereby the Tribunal informed the applicant that a relevant issue in the review was, of course, whether or not there were compelling reasons to waive the schedule 3 criteria and by those letters, the applicant was asked or invited to provide any additional evidence, in particular in relation to that issue.

7. The applicant did provide some documents to the Tribunal, including a report from a GP, Dr Tran and a report from a psychologist, Ms Jane McDowall.  On 25 June 2016, the applicant appeared before the Tribunal and gave evidence and presented arguments.  On 17 August 2016, the Tribunal gave its decision and by that decision, it affirmed the decision of the delegate not to grant the applicant a partner (temporary) (class UK) visa.  On 8 September 2016, the applicant filed an application for judicial review of the Tribunal’s decision; that application for judicial review was, of course, filed in the Federal Circuit Court of Australia.

8. In the application itself, there were three particularised grounds.  Ground number 1 was today withdrawn by Mr Nguyen, the solicitor on behalf of the applicant.  Ground 2 states:

   “2. The Tribunal made an error of law by failing to take into account relevant considerations in making its finding as to the existence of compelling circumstances at the time of the application

   
   Particulars:

   
   (a) The Tribunal expected the Applicant to give evidence in relation to his fears of returning to Egypt.

   (b) At paras 20, 22 and 27 it said that the applicant did not submit any documentary evidence to demonstrate that his life would be in danger if he returned to Egypt. 

   (c) It failed to consider that relevant country information in relation to security situation in Egypt at the time of applicant.”

9. Of particular note in the submissions of Mr Nguyen is a decision of Bromberg J of the Federal Court of Australia, dated 9 May 2012.  The name of the case is MZYPZ v the Minister for Immigration and Citizenship [2012] FCA 478. In that case, a person (the applicant) had applied for a partner visa. The person had previously applied for a protection visa. The circumstances are similar to that extent. In the case of MZYPZ v the Minister for Immigration and Citizenship (supra) the Court, when looking at the question of compelling reasons or compelling circumstances, stated – and I note from paragraph 23 of the decision:

   “23  The Tribunal’s decision of that issue was briefly explained at 74 of its reasons as follows: 

   And the Tribunal finds that the applicant has made an application for a protection visa in the past and that this application was refused.  Accordingly the Tribunal finds that these claims do not amount to compelling circumstances.

   24   In the proceeding before the Federal Magistrate, and on this appeal, the appellant contended that the Tribunal failed to consider and assess the appellant’s ongoing fears for his safety, as at the time of his application, and instead had relied upon findings made by the RRT some two years earlier in relation to the appellant’s application for a protection visa.

   25    The Federal Magistrate dismissed that contention at [46] of her reasons for judgment, as follows:

   The Applicant argues that his fear for his safety as at November 2009 was what the Tribunal should have considered. The Applicant, however, raised only matters with the Tribunal which occurred prior to his arrival in Australia in 1999. These matters must have been considered by the Refugee Review Tribunal which refused his application for a protection visa in August 2007. He raised nothing to suggest any reasons why those fears should be given greater weight in November 2009 or any factors occurring between August 2007 and November 2009 which should cause the Tribunal to consider such fears to now constitute ‘compelling reasons’ for waiving the requirements of the relevant regulations.

   26    With respect to the Federal Magistrate, her Honour’s decision fails to grapple with the appellant’s primary contention. That contention is that because the Tribunal relied upon the rejection by the RRT of the appellant’s application for a protection visa, the Tribunal foreclosed and did not consider for itself whether the appellant’s return to Sri Lanka posed sufficient risk to the appellant’s safety to warrant a finding that compelling reasons existed. That contention raises the issue of whether the Tribunal’s decision-making process is affected by jurisdictional error because the Tribunal failed to consider for itself, and thus failed to satisfy itself, whether compelling reasons existed.

   27    There can be little doubt that whether it was safe for the appellant to return to Sri Lanka was an issue capable of grounding a finding that compelling reasons existed. There was at least some probative material before the Tribunal which could have supported a finding that it was unsafe for the appellant to return to Sri Lanka. In the discharge of its duty to consider whether compelling reasons existed, the Tribunal was required to consider that material for itself and evaluate it. The Tribunal was required to engage with that material and give it genuine consideration. It was not entitled to reject the material on the basis of its unstated assumption that, because the appellant’s application before the RRT was rejected, the material before the Tribunal must have been rejected by the RRT and thus should now be rejected by the Tribunal. By adopting that assumption, the Tribunal failed to consider the evidence before it as it was required to do.

   28    I should add that the assumption that the Tribunal made was not necessarily well founded. Whilst the outcome of the RRT’s review was before the Tribunal, it is not apparent that the Tribunal had before it the RRT’s reasons or any record of the proceedings before the RRT.

   29    Finally, I should also say that it would have been permissible for the Tribunal to have had regard to any findings made by the RRT about the issue of the appellant’s safety, so long as it did so assisted by an accurate account of the relevant evidence and submissions upon which those findings were made. If the Tribunal had done that, the inference that it failed to exercise its own judgment may not have been available.

   30    The Tribunal’s failure to consider and evaluate for itself whether the material relied upon by the appellant, as to the risk to his safety should he return to Sri Lanka, resulted in the failure by the Tribunal to deal with the consideration (whether compelling reasons existed) that the Tribunal was bound to consider. That failure in the decision-making process involved jurisdictional error.”

10. In particular, I note what Bromberg J had to say in paragraphs 29 and 30 (above).  In paragraph 30, he referred to the fact that in that case, the Tribunal had failed to consider and evaluate for itself whether the material relied upon by the appellant as to the risk to his safety should he return to Sri Lanka - resulted in the failure by the Tribunal to deal with the consideration of whether compelling reasons existed and that was something that the Tribunal was bound to consider.

11. His Honour concluded that that particular failure in the decision making process involved jurisdictional error.  In the case which is currently before this Court, it is, of course, necessary to have regard to precisely what did occur.  What did the Tribunal do in the current case before the Court?  More particularly, did the Tribunal, in the present case, correctly and properly evaluate the applicant’s contention that he had a fear – indeed, a well-founded fear of persecution or harm should he return to Egypt primarily due, as he said, to his previous political involvement in the Mubarak regime and his membership or former membership of a political group known as the NDP?  I note what is said in the reasons for the Tribunal from page 269 of the court book under the heading of “Compelling reasons” from paragraph 18. I note paragraphs 18, 19, 20, 21 and 22 of the Tribunal’s reasons:

    “18. The Applicant told the Tribunal that he considered there were compelling reasons for not applying the Schedule 3 criteria. The main reason is that he cannot return to Egypt because due to his previous political involvement in the Mubarak regime and membership of the NDP he would be killed if he returned.

    19. The Tribunal put to the applicant that at the RRT hearing he had attended to give evidence and present arguments concerning  his application and it was considered that he would not suffer persecution due to his political membership or political activities. He said he considered that the decision by the delegate and the RRT in respect of his protection visa were not correct.

    20. The applicant did not submit any further documentary evidence in support of his belief that he would be killed for his political activities and beliefs.

    21. The Tribunal asked the applicant why he had returned to Egypt in 2011 and again in 2012. He said that his mother had been sick and he had returned home for 6 weeks to spend time with her. He had returned in 2012 because his mother had died. He said that his brother had also died. The family were told that the brother had died in a car accident but neither he nor his mother had believed this. He has a sister in Egypt who is not involved in political activities and is therefore able to live relatively safely.

    22. The Tribunal asked the applicant whether there were presently members of the form NDP in Parliament in Egypt. He agreed that there were several people in this category but this was accepted because they were businessmen who had mutual interests with the people presently in power there, or they were people with media interests who were prepared to say only complimentary things about the government. He said that some of the Mubarak supporters who were now in Parliament were not members of the NDP but had been given active in politics during that period. He did not submit any documentary evidence concerning why he should be targeted as a previous member of the NDP. He said he was not able to provide this evidence because he was in Australia at the time of his hearing before the RRT and at the time he applied for the partner visa and so was not able to obtain the evidence.”

12. It’s apparent, from a close reading of those paragraphs, that in the case which is currently before the court, the Tribunal did in fact consider and evaluate, for itself, the claims by the applicant that he would be at risk of harm if he returned to Egypt.  Indeed, his own belief, as he put to the Tribunal, was that he would be killed.  Paragraph 19 makes it clear that the Tribunal in this case put to the applicant that he had previously attended at an RRT hearing to give evidence and present arguments concerning the application for the protection visa and the applicant said, well, he did not agree with the decision of the delegate in that case and nor did he agree with the decision of the RRT in that particular instance.

13. Paragraph 20 of this decision which is currently before the court is important because it makes it clear that the applicant did not submit any further documentary evidence in support of his belief that he would be killed for his political activities and beliefs.  But not only that, I think that paragraphs 21 and 22 are absolutely crucial on this particular point and frankly, as far as this court is concerned, they do provide a complete answer to the applicant’s contention.  Now, in paragraph 21, it’s clear the Tribunal, in the present case, questioned the applicant about his concerns – his fears about returning to Egypt.  In particular, they asked him why he had returned to Egypt in 2011 and again in 2012.

14. The applicant gave his reasons.  His mother had been sick and he had spent six weeks there.  On another occasion he went back in 2012 because his mother had died and then he said his brother had also died.  He said the family were told that the brother had died in a car accident but neither he nor his mother had believed this.  He does not go on to say what they actually believed but in any event, the Tribunal had asked him, “Why did you return in those years?”  And then, of particular note is paragraph 22.  The Tribunal asked the applicant about the fact that there were presently members of the former NDP who sat as members in the Parliament of Egypt and the applicant accepted this.

15. He agreed there were several people in that category.  The applicant maintained that they were not in any danger because they had mutual interests with the people presently in power in Egypt but he did not submit any documentary evidence concerning why he should be targeted as a previous member of the NDP and yet, these other persons were able to sit in the Parliament of Egypt, even though they were previous members of the NDP or even though they were previous supporters of the prior regime, that is, the Mubarak regime.  So it is possible to see, from the reasons given by the Tribunal, that the Tribunal evaluated for itself the contentions of the applicant in relation to these issues.

16. The Tribunal considered the claims and did not merely refer to the fact that a previous Tribunal had not accepted the applicant’s claim for a protection visa.  So for those reasons, the case that is currently before the Court is able to be distinguished from the decision of Bromberg J in MZYPZ v the Minister for Immigration and Citizenship [2012] FCA 478. In the present case, it is possible to see from the reasons themselves that the Tribunal did in fact consider and evaluate for itself the claims made by the applicant and the contentions made by the applicant concerning his claims of being fearful of suffering harm should he return to Egypt. I do note paragraph 27 of the decision is where the Tribunal itself disposed of this particular point. That paragraph states:

    “27. The Tribunal accepts the applicant was politically active when he was in Egypt and that he was a member of the NDP. There is no evidence before the Tribunal that he has been deliberately targeted while in Egypt as an individual or a member of a group that his life or welfare is in danger if he returned to Egypt. At the hearing the applicant agreed that there were members of the NDP and former supporters of President Mubarak in the present Parliament in Egypt. He did not submit any documentary evidence to demonstrate that his life would be in danger if he returned to Egypt. On the basis of the evidence presented the Tribunal is not satisfied that the applicant’s claim that he would suffer harm if he returned to Egypt is a sufficiently compelling reason not to apply the schedule 3 criteria.”

17. The Tribunal, of course, did accept that the applicant had been politically active when he was in Egypt and accepted that he had been a member of the NDP. But the Tribunal’s finding was that there was no evidence that he, that is, the applicant, had been deliberately targeted while in Egypt as an individual or as a member of a group so that his life or his welfare was in danger if he returned to Egypt and paragraph 27 makes it clear that on the basis of the evidence presented to the Tribunal, the Tribunal was not satisfied with the applicant’s claim that he would suffer harm if he returned to Egypt.  The Tribunal was not satisfied that such a claim was a sufficiently compelling reason not to apply the schedule 3 criteria. 

18. In the regulations at clause 820.211, certain criteria which had to be satisfied at the time of the application are set out.  820.211(2)(d)(ii) says, in effect:

    “In the case of an applicant who is not a holder of a substantive visa – …

    And that applies in this case - then:  

    (ii) the applicant must satisfy schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.” 

1. Looking at the schedule 3 criteria - number 3001 - the application had to be validly made within 28 days after the relevant day. I have already made specific note of the date that he last held a substantive visa, which was a date in April of 2013 and because he did not apply within 28 days, that is the reason why the applicant in the present case needed to satisfy the Minister that there were compelling reasons for not applying that criteria.

2. I agree with the submission made by Mr Pinder on behalf of the Minister that regulation 820.211(2)(d)(ii) requires an applicant to satisfy criteria 3001, 3003 and 3004 from schedule 3.  In the present case, he did not even comply with 3001, therefore it is of course necessary to look immediately at the second part of subparagraph (ii) - the compelling reasons issue - and as I have already stated, the first and the main compelling reason contended by the applicant related to the question of his fear for his own safety should he return to Egypt.  As I have already stated - in paragraph 27 of the Tribunal’s decision, it disposed of that particular issue. 

3. In relation to one of the other claims for compelling reasons, the applicant referred to the question of family violence and he says that he had been denied procedural fairness – that is, ground number 3 – by not being invited to comment on the documentary evidence.  I will start with looking at it from the point of view of ground number 2.  On this issue of the family violence, the Tribunal considered the letters from the GP and the psychologist, considered the evidence of the applicant and came to a conclusion that was obviously, in my view, open to it.  It came to the conclusion that the claimed family violence was not a compelling reason not to apply the schedule 3 criteria.

4. In particular, I note paragraphs 23, 24, 25, 26 and 28 of the Tribunal’s decision state as follows:

   “23. The Applicant said that he also considered that the fact that he had suffered family violence perpetrated by the sponsor was a compelling reason for not applying the Schedule 3 criteria. He said that his wife had threatened him that he would be deported and this had made him very anxious. He said that although he had not known about her drinking until after they were married it was soon after the wedding that he became aware that she was an alcoholic. He would smell alcohol on her breath when she came home and she would obviously drink to excess. He also said that on one occasion she had asked him for money to have her car fixed by the mechanic but when he asked her a few days later where the car was she said she had sold it. He was upset and angry the she had misled him and taken his money as he had wanted to plan for their future together in Australia. Later she bought another car and then asked him to give her money to make further payments on that car. On one occasion she hit him with a laptop computer and this made him angry and upset. He considered these incidents constituted family violence.

   24. The applicant also said that one day when he had been reading on the internet and saw that a number of people had been killed in a bomb blast in Egypt. He had become upset and when his wife asked him why he was upset he told her. She had then said that if it was not for her he might also have been killed by the bomb. This cause tension between them and he told her not to talk to him like that.

   25. The applicant said that his wife had left him after the incident in which she hit him with the laptop. She told him not to come after her or she would call the police. She then threatened him by saying that if she called the police he would know what would happen. By this she presumable meant that she would cancel his visa.

   26. The applicant said the he wanted to submit a photo of his wife taken on the day she left him to show the Tribunal the expression on her face. He said he is now not able to overcome his fears. The Tribunal did not consider it necessary to have the photo in order to make its decision as the applicant had provided evidence about his wife’s attitude and behaviour to him at the hearing.

   28. After the hearing the applicant submitted a copy of a report by a psychologist, Jane McDowall, dated 13 July 2016 who assessed the applicant for the purposes of the applicant. The psychologist states she considers the applicant has suffered family violence perpetrated by his wife, the sponsor. The Tribunal notes there is no evidence that the psychologist has treated the applicant. The report is an assessment of the applicant only. The Tribunal considers that the report from Ms McDowell was not based on any ongoing treatment of the applicant and was obtained for the purpose of the application to the Tribunal. Accordingly the Tribunal places limited weight on this report. The Tribunal accepts that the relationship between the applicant and his wife was unhappy and stressful and that his wife wanted to threaten him and inflict hurt. The Tribunal is not satisfied that the claimed family violence is a compelling reason not to apply the Schedule 3 criteria.”

5. In paragraph number 28, the Tribunal makes it clear that the Tribunal had considered and evaluated this contention by the applicant and the reasons why the Tribunal came to the conclusion that the claimed family violence was not a compelling reason to apply the schedule 3 criteria.  I will also deal with ground number 3 because it is closely related.  I think Mr Pinder is right.  There is probably a third aspect to the compelling reasons relating to the breakdown of the relationship with the sponsor and in paragraph 29 of the Tribunal’s reasons, it was accepted that the applicant had an unhappy relationship with his wife and that he was depressed and anxious about his future.

6. The Tribunal then explained why it came to the conclusion that it did not consider that the alleged family violence or the applicant’s depression or anxiety were compelling reasons for not applying the schedule 3 criteria.  So at every step in relation to this issue of the alleged family violence, the applicant’s depression and anxiety linked to the breakdown of his relationship – the Tribunal considered all of the evidence that was presented and gave reasons as to why they were not compelling reasons for not applying the schedule 3 criteria.  Ground number 3, as actually particularised, claims that the Tribunal had denied procedural fairness by not inviting the applicant to comment on the documentary evidence presented at the hearing. Ground 3 states:

   “3. The Tribunal denied procedural fairness by not inviting the Applicant to comment on the documentary evidence presented at the hearing in relation to the genuineness of the applicant’s relationship with his wife.

   Particulars:

   (a) At para 10 it said the photos submitted by the applicant did not include other friends or family.

   (b) It did not invite the Applicant to comment on the evidence in relation to that issue.”

7. I note, in relation to this ground, paragraph 10 of the Tribunal’s decision and also, for instance, paragraph 26.  Those two paragraphs of the Tribunal’s decision state:

   “10. Prior to the hearing the applicant submitted a number of documents to the Tribunal. These included photos of the couple together. None of these included other friends or family. There is a copy of their marriage certificate showing the couple married on 1 April 204. A copy of a joint Commonwealth Bank account statement in their names showing the account was closed on 12 October 2015 by the bank as the account was no longer used. There are further joint account statements from 1 April 2014 to 30 December 2014 showing the account was used for utilities payments and purchases of groceries. He submitted undated statements from 3 friends attesting to the relationship being genuine. He further submitted an unsigned and undated statutory declaration setting out the relationship between him and the parties. This was subsequently resubmitted dated and signed.

   ...

   26. The applicant said that he wanted to submit a photo of his wife taken on the day she left him to show the Tribunal the expression on her face. He said he is now able to overcome his fears. The Tribunal did not consider it necessary to have the photo in order to make its decision as the applicant had provided evidence about his wife’s attitude and behaviour to him at the hearing.”

8. On a reading of those two paragraphs as well as a reading of the reasons in their entirety, it seems to me that the ground should fail. 

9. It is worth noting, that section 359A of the Act does not apply to information that the applicant gave for the purpose of the applications for review and I note in particular paragraph 359A(4)(b). I also note that deficiencies in the applicant’s own documentary evidence or the identification of deficiencies in the applicant’s own documentary evidence do not constitute information in the sense that it is used in section 359A of the Act.

10. I have come to the conclusion that the submissions of the Minister in paragraphs 32, 33, 34 and 35 are correct. Those paragraphs from the first respondent’s submission state:

    “32. The third grounds contends that the Tribunal denied the applicant procedural fairness by not inviting him to comment on documentary evidence presented at the hearing in relation to the genuineness of the applicant's relationship with his wife. The particulars to this ground refer to paragraph [10] of the Tribunal's decision (CB268–269) and assert that the Tribunal erred by not inviting the applicant to comment on its statement that the photos submitted by the applicant did not include other friends or family.

    33. The first respondent submits that this ground should fail.

    34. To the extent that the applicant may allege that the Tribunal breached section 359A of the Act, the first respondent observes that:

    (a) first, section 359A does not apply to information that the applicant gave for the purpose of the application for review (paragraph 359A(4)(b));

    (b) secondly, the identification of deficiencies in the applicant's documentary evidence does not constitute 'information' in the sense contemplated by section 359A of the Act, as 'information…does not encompass the tribunal's subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of details or specificity in evidence or conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps' (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at 476–477 [24]); and

    (c) thirdly, other than the statement that the photos submitted by the applicant did not include 'other friends or family', the Tribunal does not refer to them in its decision record. It is therefore not apparent how that observation 'would be the reason, or part of the reason, for affirming the decision that is under review' (cf. Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 at [26]). Nor is it apparent how the photographs themselves could be said to amount to a rejection, denial or undermining of the applicant's claims (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]).

    35. To the extent that the applicant may allege that the Tribunal breached section 360 of the Act, the first respondent observes that:

    (a) first, the applicant has not filed or served a transcript to demonstrate what was or was not discussed at the hearing; and

    (b) secondly, and in any event, on no reading of the Tribunal's reasons for decision could it be said that the question of whether the photographs submitted by the applicant contained the applicant's friends and family was a 'dispositive issue' (cf. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). Indeed the Tribunal accepted the applicant's evidence that he had been in a relationship with the sponsor, but the relationship had broken down.”

11. In particular, I note and agree with the submission that - “other than the statement that the photos submitted by the applicant did not include ‘other friends or family’” the Tribunal did not refer to the photos in the decision. I agree that it is therefore not apparent how that observation – “would be reason, or part of the reason for affirming the decision that is under review”. Note Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507.

12. The photographs themselves could not be said to amount to a rejection, denial or undermining of the applicant’s claims. In this regard I note SZBYR v Minister for Immigration (2007) 81 ALJR 1190.

13. I agree also with the conclusion or the submission in paragraph 35 of the written submissions of the first respondent. If it was to be claimed that the Tribunal had breached section 360 of the Act, it is noted that there is no transcript provided in relation to precisely what occurred and it could not be said that the submission of photographs by the applicant was a dispositive issue. I note SZBEL v the Minister [2006] 228 CLR 152. As was actually noted in paragraph 29 of the Tribunal’s decision, the Tribunal accepted that the applicant had been in an unhappy relationship with his wife and that he was depressed and anxious about his future, so the question of looking at photographs is really not a point or a submission that would lead this Court to conclude that there had somehow been a failure of procedural fairness by the Tribunal.

14. I noted earlier that ground number 1 was withdrawn.  Ground number 2, I have come to the conclusion should fail.  So should ground number 3 for the reasons that I have stated.  I have come to the conclusion that the applicant has not been able to show to this Court that a jurisdictional error has occurred.  In those circumstances, the application is dismissed. 

15. There will be an order that the applicant pay the costs of the first respondent, fixed in the sum of $5200 and the other order, of course, is that the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Howard.

Date: 22 September 2017

CORRECTIONS:

1. In these reasons for judgment the applicant shall be known by the pseudonym SZUDO.