BVB15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-04-23|Before: Smith J

(2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 SZSYG v Minister for Immigration and Border Protection [2015] FCA 1319 Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Date of hearing: 21 August 2020

Counsel for the Appellant: Mr AFL Krohn (pro bono)

Counsel for the First Respondent: Mr PR Macliver

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: BANKS-SMITH J DATE OF ORDER: 23 APRIL 2021

The orders dismissing the appeal and as to costs made 4 December 2019 be set aside.
The amended notice of appeal filed 10 August 2020 stand as the notice of appeal.
The appeal is dismissed.
The appellant is to pay the first respondent's costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 The applicant applies under r 36.75(2) of the Federal Court Rules 2011 (Cth) to set aside orders made under r 36.75(1) dismissing an appeal on the basis of non-attendance at the hearing of the appeal. 2 The appeal was from the decision of the Federal Circuit Court dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant to the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

Procedural background 3 The applicant is a citizen of Sri Lanka who arrived by boat in Australia in April 2013. His application for a protection visa was lodged in July 2013. 4 On 8 August 2014 the Department of Immigration and Border Protection notified the applicant by letter that his visa application had been refused. A record of the delegate's reasons was attached. Relevantly for the purpose of this proceeding, the delegate found that a particular untranslated document provided by the applicant, said to be from the Terrorism Investigation Unit of the police (TIU document), was not genuine. The delegate noted that: At interview the applicant provided an original document that stated he was wanted for questioning by the terrorist investigation unit. He said his parents received the document whilst he was still in Sri Lanka, although he is not sure when. The document itself is not dated and has inconsistencies in font and printing. The applicant's claims that he was not aware that it existed until December 2013 because his parents did not take the document seriously causes further speculation regarding the documents authenticity. I therefore do not accept that prima facie the document provided by the applicant is genuine. 5 The applicant sought review of the delegate's decision by the Tribunal. 6 On 27 May 2015 the Tribunal by letter notified the applicant's representative that the applicant was invited to appear before the Tribunal to give evidence and present arguments. The applicant by his registered migration agent filed submissions on 21 June 2015, and also provided three additional letters. 7 The first purported to be from a person who signed the letter as an 'Attorney at Law'. The second purported to be from the applicant's father. The third purported to be from the Head Man of the village (together the three impugned letters). Their content is referred to below. 8 The hearing took place on 2 July 2015. The applicant was represented by his registered migration agent. Excerpts of the transcript of the hearing were before the Court and, again, are referred to below. 9 On 19 August 2015 the Tribunal notified the applicant of its decision to affirm the delegate's decision, and provided its statement of decision and reasons. 10 The applicant filed an application for judicial review in the Federal Circuit Court (FCC) on 7 September 2015. 11 The FCC (Judge Lucev) heard the review application on 28 June 2016. The applicant was unrepresented. Reasons were delivered on 11 December 2018 dismissing all review grounds: BVB15 v Minister for Immigration and Border Protection [2018] FCCA 3616. Relevantly, Judge Lucev dismissed a ground to the effect that the Tribunal's decision was unreasonable and reflected bias in its rejection of the authenticity of the three impugned letters and in its conclusion that they should be afforded little evidentiary weight. 12 However, Judge Lucev's reasons did not finalise the review process. His Honour made orders adjourning the matter to a further directions hearing. That course was taken because Judge Lucev had identified what he described as an error that might amount to jurisdictional error by way of unreasonableness in relation to the Tribunal's treatment of the TIU document. His Honour considered it appropriate to hear further from the parties with respect to that possible error: at [60]-[77]. 13 The applicant, by new solicitors, filed an amended application for judicial review on 4 April 2019, raising (unsurprisingly) the potential error that had been identified. 14 On 14 May 2019 a further hearing was conducted before a different FCC judge (Judge Street). At this hearing, the applicant was represented by pro bono counsel. Judge Street dismissed the application with reasons given extempore and published later: BVB15 v Minister for Immigration and Border Protection (No 2) [2019] FCCA 1264. 15 The applicant filed a notice of appeal from Judge Street's orders. 16 The hearing of the appeal was listed before this Court for 4 December 2019, but the applicant failed to appear, and accordingly the appeal was dismissed under r 36.75(1) of the Federal Court Rules. 17 The applicant filed this application on 10 December 2019 seeking that the order made on [4] December 2019 'be dismissed' and the 'matter be relisted for hearing'. The applicant filed an affidavit in support of the interlocutory application. 18 On 10 August 2020, and shortly before this hearing, an amended notice of appeal was filed. By this time the applicant had the assistance of legal representation from pro bono counsel. The amended notice of appeal includes three grounds of appeal, reproduced further below, all relating to the Tribunal's treatment of the three impugned letters and the TIU document and the FCC's failure to find jurisdictional error in that regard.

Reinstatement 19 The power to set aside or vary the order dismissing the appeal under r 36.75(2) is discretionary: EDU16 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 465 at [3] (Snaden J); and FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38 at [6] (O'Bryan J). 20 Relevant considerations are: first, whether there is a reasonable excuse for the party's absence; second, the existence and nature of any prejudice which might flow to the other party from a reinstatement and if so, the extent to which that prejudice can be counteracted or assuaged by a costs order, adjournment or other relief; and third, whether the application for reinstatement has a reasonably arguable prospect of success on the substantive application: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] (Ryan J); AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305 at [8]-[9] (Markovic J); and BRL15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 1478 at [3] (Pagone J). 21 The applicant said, in an affidavit filed in support of his application, that on the day of the hearing he arrived at the Registry, but was unsure which floor to attend. He said that once a Registry staff member told him the correct floor, it was too late. The applicant spoke to Registry again who recommended speaking to the AGS solicitor. The applicant called a representative at the Refugee Council of WA who confirmed with the Registry what happened. It appears that the representative spoke to the AGS lawyer the next day. 22 The Minister accepts for the purpose of this application that having regard to that evidence, the applicant has given a reasonable excuse for his non-attendance. 23 The Minister also accepts that there is no prejudice to him that cannot be remedied by a favourable costs order. 24 In issue between the parties, therefore, is whether the applicant's grounds of appeal have a reasonably arguable prospect of success so as to justify reinstatement. If there is no reasonable chance of success, there is no purpose in reinstatement: MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] (North J). 25 The parties were in agreement that the hearing would be conducted on the basis that if the Court considered there was a reasonably arguable prospect of success of the grounds contained in the amended notice of appeal, such that the dismissal would be set aside, then it would proceed to determine the appeal. For that reason, the appeal grounds were addressed in detail by the parties. 26 Having considered the respective submissions of the parties, I formed the view that there was sufficient substance to the amended grounds to justify reinstatement of the appeal. The issue raised by, relevantly, Judge Lucev required detailed consideration. The grounds were not so speculative or unmeritorious as to justify an outcome that would prevent the applicant from having his appeal considered. Having regard to the parties' approach to the conduct of the hearing and the lack of any need to consider further resources, I have accordingly proceeded to consider the appeal grounds in detail and determine the appeal.

The outcome 27 The Tribunal upheld the delegate's decision and in it reasons made adverse credibility findings based on implausibility and inconsistencies in the applicant's evidence. 28 Having considered the applicant's claims individually and cumulatively, the Tribunal found that the applicant did not have a well-founded fear of persecution for a convention reason and so was not satisfied that he satisfied the refugee criterion in s 36(2)(a). For similar reasons, it concluded that the complementary protection criteria in s 36(2)(aa) were not met.

The claim 29 The applicant claimed that the police found guns in a house with which he was associated, leading to his fear of harm or persecution on return to Sri Lanka on the basis of an actual or imputed political opinion and membership in relation to the Liberation Tigers of Tamil Eelam (LTTE) and suspected terrorism-related activities. The Tribunal noted that the applicant's protection claims were restated in the delegate's decision and set them out as follows: 13. … He states that in his village, he and his father owned 2 houses. One house was rented to 3 Tamil people who were working on a water mains project. They were there for about a month without any problems. He was working on a 3 wheeler at the time and was told by his brother that the police had searched the house on 8 July 2011. The police found guns in the house. The people who rented the house had left and they could not find them. His friends helped him to search but to no avail. The villagers started pelting stones at his house saying he was aiding and abetting Tamils. Then the police searched their family home looking for weapons. He was asked to report to the police station but didn't go as he could not find the 3 men. He was frightened he would be taken into custody as he couldn't find the 3 men. The police is Sri Lanka are ruthless and anyone who associates with Tamils and is under suspicion of involvement with the LTTE is in danger of being detained and tortured. 14. On the same day the police searched the house he went to Matara with a friend. He worked on fishing boats and also went to Ambalanthota where he worked on fishing boats. He never went back to the village even when his father became seriously ill and was paralysed. 15. Since he went into hiding and has been in Australia, the police have been going on and off to the house looking for him. Also a group of thugs have visited the house on separate occasions looking for him and ask his parents if they had their weapons. These are part of a criminal gang whose leader is a local councillor and SLFP supporter. Only his family and his friend he stayed with in Matara know he is in Australia. He told his parents after his arrival in Australia.

The letters and the TIU document 30 The Tribunal also dealt with the three impugned letters and untranslated TIU document as follows. 31 As to the TIU document, the Tribunal said: 16. The applicant provided an untranslated document he claims a document stating he was wanted for questioning. The delegate referred to the document not being dated and inconsistencies in the font. He claimed his parents received the document while he was still in Sri Lanka but he was not aware of its existence until December 2013 as his parents did not take the document seriously. The delegate did not accept the document was genuine. 32 As to the three impugned letters, the Tribunal noted that they were provided with the applicant's written submissions filed with the Tribunal, and were not before the delegate. 33 The Tribunal then said the following about the three impugned letters and the TIU document: 26. An undated statement from [Head Man] was provided stating that the applicant is a suspect who will be arrested on sight for an alleged offence with the discovery of certain military rifles within his residence at [redacted]. 27. The statement from his father affirmed 13 March 2015 states his son fled to Australia as he was in fear for his life as the police were looking for him for an offence connected the finding of certain military rifles in his residence he had let out. In Sri Lanka due to the emergency situation created by the civil war, persons suspected of being connected with an armed revolt or violence directed against the state is subject to torture and extra judicial killings. 28. An undated statement from an Attorney at Law stating he knows the family and is aware the applicant had to leave the country as the police were looking for him following the discovery of TD56 rifles in his residence. This is a serious offence under the Prevention of Terrorism Act which enab1es any member of the manned forces and police to arrest, detain, person who is suspect. It has been alleged that persons arrested for these offences are not brought within the Courts and the worst human rights offences take place. 29. As discussed with the applicant at hearing, the [TIU] document claimed to be issued indicating that the applicant was wanted for questioning by the terrorist investigation unit was not translated. The Tribunal referred to the delegate also indicating concerns over the authenticity of the document. The Tribunal indicated to the applicant that it had concerns over each of the documents presented and referred to country information indicating the ease in which fraudulent documents could be obtained. The applicant told the Tribunal that his father did not speak, read or write English and when asked why the document he provided was written in English was, the applicant responded that his father's friend was a lawyer and wrote it for him. The Tribunal indicated that the letter from the lawyer did not identify him, apart from a mention at the end that he was an Attorney at Law. All 3 letters provided were set out similarly and in the same type. The letter from the [Head Man] similarly identified him as [Head Man] but no name. All letters were written in English and there was no confirmation of the identity of each writer. The applicant indicated he could arrange the address block to be translated and they could be verified. However, as indicated at hearing, that would not overcome the concerns of the Tribunal as to the overall authenticity of the 3 letters provided by him. The applicant's response to the Tribunal's concerns was that his father obtained the documents for him. 30. It was submitted by the representative that as the applicant's father obtained the letters, no adverse credibility finding should be made against the applicant should the Tribunal find the documents provided as not credible. 31. The Tribunal has carefully considered the content of these various documents but they do not overcome the Tribunal's concerns about the applicant's credibility. While the applicant claims that he would not submit false documents, in view of the country information as to the ease of obtaining false documents in Sri Lanka and the concerns the Tribunal has over the applicant's credibility, the Tribunal gives the documents little evidentiary weight as independent evidence that he is wanted by the police in relation to finding firearms in his house. 34 The Tribunal's statement at para 30 of its reasons reflects the applicant's written submission prepared by his migration agent. The submission relevantly said: We also ask that the document [the applicant] presented to the Department from his parents in Sri Lanka, not impact negatively on his character should you not accept it as genuine. [The applicant] maintains that he did not obtain the document fraudulently. A copy was passed to him by his [parents] who allege the document was found at their house apparently delivered by the local police in their absence. The Terrorist Investigation Unit is part of [Sri Lankan] police. [The applicant] is presenting three more documents in support of his application from his father, [Head Man] and family lawyer supporting the facts of his application.

The claim as to the location of guns by police and the credibility findings 35 The Tribunal then addressed the evidence given before the Tribunal and set out the basis for its credibility concerns (at paras 45-53 of its reasons). 36 The Tribunal noted that the applicant's evidence as to when the police searched his house and found the guns was inconsistent. The applicant maintained in his submissions that it occurred in 2011, but upon questioning said it was 2010. The Tribunal acknowledged that visa applicants often have difficulties with dates, but found it implausible that the applicant would fail to remember the time the incident occurred as this was his central reason for seeking protection. 37 The Tribunal also considered that the applicant had not been consistent in his evidence as to the police visiting his parents to look for him, saying that he became evasive under questioning. The Tribunal recorded that the applicant gave evidence that the police visited two to three times a month, but then was unable to say when the last time was; that when he calls his parents once a week they tell him that the police visit them; that when asked again about the visits, the applicant said that the police stopped coming because the police knew he was in Australia; and that the applicant could not specifically say when the last visit from the police occurred. In a written statement dated June 2013 the applicant had said that no-one knew he was in Australia. In contrast, during the hearing the applicant said that everyone in the village knew that he was in Australia shortly after he arrived. Having regard to the inconsistencies in his evidence, the Tribunal did not accept that the police had visited his house looking for him. 38 The Tribunal also did not accept that an underworld 'thug' had visited his parents (another claim made by the applicant), because it did not accept the applicant's evidence that the police had visited his house and found guns in his house and did not accept the applicant to be a credible witness. The Tribunal found that this claim was fabricated to enhance his protection claim. 39 The Tribunal also rejected as implausible the applicant's evidence that he would be held responsible for the guns found by the police in the house, a house he had rented to three Tamil people. The applicant's evidence before the Tribunal was that everyone knew that he had rented the house to the three Tamils, including the local police, and that the three Tamils were employed to lay a pipeline. The Tribunal did not accept that in those circumstances the police could not identify the three Tamil people renting the house. The Tribunal did not accept that in those circumstances the applicant would be held responsible for guns in the rented house. 40 The Tribunal also found that the applicant's evidence was inconsistent as to 'who told him and what they told him' in relation to the police searching for him. There was confusion as to whether it was his brother, mother or cousin. 41 The Tribunal rejected as implausible the applicant's claim that because they could not find the three Tamils, the police would find him responsible for the guns. The Tribunal rejected as implausible his claim that they would immediately accuse him of being associated with the LTTE or any other terrorist organisation on the basis that the police found the guns on the property and subsequently could not find the three Tamils. The Tribunal recorded that the applicant agreed in his evidence that if the police could not find the tenants, then they would speak to the owner of the property and that he did not in fact own the property (he claimed it was owned by his mother) but used it to socialise with friends. 42 The Tribunal also noted the applicant's evidence that the police searched the property in the morning; that he fled in the afternoon; and that it was a small village. The Tribunal said that it did not accept, given the nature of the small village, that if the police were genuinely interested in him they would not have found him in the short time before he fled the village, especially because the applicant claimed he was looking for the three Tamils. The Tribunal also did not accept that, in the two years after those events and before he departed Sri Lanka, he could have avoided detection if he was wanted by the larger Sri Lankan police force due to the claimed serious charges against him. 43 Because the Tribunal did not consider the applicant to be a credible witness, it also rejected the claim that his brother was assaulted in the village and that villagers pelted stones at their house. 44 The Tribunal concluded that, after considering all the applicant's evidence and based on the inconsistencies and implausibility it had discussed, it did not accept the applicant to be a credible witness and found that he had not been truthful in his reasons for departing Sri Lanka. The Tribunal formally found that he had fabricated his claims that the police found guns in his house for the purposes of his protection application. 45 The Tribunal did not accept that there were any outstanding criminal charges or warrants against the applicant or that the police or authorities were interested in him for any reason. It rejected his claim and did not accept he would face a real chance of serious harm because of an actual or imputed political opinion as a terrorist or supporting the LTTE or opposing the current Sri Lankan government if he returns to Sri Lanka. Before the Federal Circuit Court First hearing before FCC 46 The applicant relied on four grounds for the purpose of the hearing before Judge Lucev in the FCC. All four grounds of review were rejected by Judge Lucev. Having regard to the grounds in this appeal, it is only necessary to refer to one: The Tribunal was unreasonable and biased in determining that the statements of the applicant's father, an attorney at law and the [Head Man] were fraudulent. 47 Judge Lucev cited the principles in relation to unreasonableness, referring to Wigney J's summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41]. His Honour considered that the Tribunal's assessment of the documents and the reasons the Tribunal gave for affording the three impugned letters little evidentiary weight (that is, the reasons of the Tribunal at para 28) could not be said to be arbitrary, capricious, without common sense or plainly unjust. 48 His Honour also noted that purported copies of the three impugned letters were attached to an affidavit provided at the FCC hearing, but they were different to the letters that were before the Tribunal. Differences included that the address blocks had been moved; some words were missing or moved; the father's name had been added to his particular letter; and text had been configured differently in some paragraphs. Judge Lucev said 'the Court ought not have regard to them, and, indeed, the Court is concerned that the manner and form of their production does no more than reinforce the Tribunal's concerns with respect to the authenticity of the three documents provided to it' (at [47]-[51]). His Honour considered that there was no jurisdictional error in the Tribunal's assessment of the documents and the letters attached to the affidavit were not of any assistance to the Court. 49 However, Judge Lucev observed that there may be possible jurisdictional error, which neither party had alluded to, in relation to the way the Tribunal dealt with the TIU document. He identified the manner in which the delegate dealt with the TIU document and also the manner in which the applicant's written submissions before the Tribunal sought to deal with it. Judge Lucev also included at [65]-[66] parts of the transcript before the Tribunal where the member asked questions about the document, for example ('TM' referring to the Tribunal member, 'AS' referring to the applicant and 'RMA' referring to the registered migration agent): TM: You provided some documents, is that correct? AS: Yes. TM: One document you indicate is a document from the police. AS: Yes. TM: It's not translated - it hasn't been translated into English. AS: I don't know. I got it from my home. … TM: There's no other further information. I do have concerns about the documents that he's provided to me as to their genuineness. RMA: (indistinct) documents have been obtained by him from his father and I'm sure (indistinct) TM: It's not in English RMA: If member give us some time to and we can actually get that done, translated … (indistinct) TM: I'll think about it. I don't think that's actually going to solve my genuine concerns about the nature of the documents provided as well. 50 Judge Lucev inferred that the document referred to in the above extracted passage was the TIU document because it was the only non-English untranslated document referred to. His Honour said: [75] The position appears, therefore, to be as follows: a) the applicant provided to the Delegate an untranslated document, the TIU Document, which he claimed was from the TIU, a division of the Sri Lankan police force, which stated that he was wanted for questioning; b) without obtaining a translation of the TIU Document the Delegate found that it was not genuine, seemingly on the basis of inconsistencies in font and printing; c) the applicant relied upon the TIU Document for the purposes of the Tribunal Hearing: see [63(a)] above; d) the Tribunal clearly understood the nature of the TIU Document, as it was asserted by the applicant, to be a document from the TIU, a division of the Sri Lankan police force, indicating that the applicant was wanted for questioning; e) the applicant had not had the TIU Document translated prior to the Tribunal Hearing (surprisingly so, given its apparent importance) but at the Tribunal Hearing offered to have a translation prepared; f) the Tribunal indicated that it would 'think about it', that is the offer to have the TIU Document translated, but qualified that by saying that it did not think a translation was 'actually' going to resolve concerns that the Tribunal had about the nature of the TIU Document: Tribunal Hearing Transcript at p24 at lines 41-42, and the other documents provided (being those at CB 172-174); g) there is nothing on the face of the record, being the Tribunal Decision, or in the materials before the Court, which indicates that the Tribunal did 'think about' the offer to have the TIU Document translated, or that the Tribunal otherwise resolved not to have the TIU Document translated, pursuant to the offer made by the applicant's migration agent or otherwise; and h) although there is a difference between the task of an interpreter and a translator, as the written word is translated and the spoken word is interpreted: De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291; (2006) 197 FLR 125 at [7]-[12] per Roberts-Smith J, it would appear that no effort was made at the Tribunal Hearing to ask the interpreter whether the interpreter might be able to translate the TIU Document. [76] The TIU Document might, if translated, assist the applicant's case. Alternatively, it might not. At this stage, it is impossible to make any finding in that regard because the TIU Document has not been translated. The applicant offered to have the TIU Document translated, and the Tribunal indicated that it would 'think about it', but did not, it appears, ever indicate to the applicant what position it had decided to adopt with respect to the offer to have the TIU Document translated, or if it did indeed actually think about the offer. In the Court's view the Tribunal's failure to do so was unreasonable in the sense that it was unjust to indicate to the applicant that the offer to translate would be thought about, and then to fail to indicate to the applicant (at least on the record as it stands before this Court) whether the Tribunal had thought about the offer to have the TIU Document translated, or alternatively, what view the Tribunal had come to with respect to whether or not it would receive a translation of the TIU Document. There might also be an arguable case that the making of a finding that the TIU Document ought to be afforded little weight (or was possibly not authentic) was unreasonable because it was arbitrary or unjust in circumstances where the Tribunal did not have the benefit of a translation of the TIU Document. The importance of the TIU Document cannot be understated: if accepted as genuine by the Tribunal it might have impacted upon the Tribunal's assessment of the applicant's credibility, and, therefore, its factual findings about the applicant's claims, and whether or not he had a well-founded fear of persecution or a fear of significant harm if returned to Sri Lanka. 51 Accordingly, Judge Lucev dismissed the applicant's review grounds, but made orders to facilitate listing a hearing where the possible jurisdictional error identified could be properly addressed.

Second hearing before FCC 52 A second hearing proceeded before Judge Street. The applicant obtained pro bono representation and relied on the following new ground of review: The Tribunal acted unreasonably by indicating to the applicant that it would consider his offer to have the Terrorist Information Unit (TIU) document translated, and subsequently: a) failing to inform the applicant of its position on his offer; b) failing to inform the applicant whether it had considered his offer; and c) finding that the TIU document should be given little weight, when the Tribunal did not have a translation of it; and the failures and finding referred to above were, in light of the potential importance of the TIU document, so unreasonable that the Tribunal fell into jurisdictional error. 53 A translation of the TIU document was in evidence for the second hearing, and was to the following effect: Sri Lanka Police Crime Investigation Unit [village] The person named [BVB15] has rented his house to Tamil persons. Upon the information received from a neighbour, when the house was inspected on [redacted] July 2011 a collection of automatic firearms was discovered but the Tamils could not be arrested. The person who rented out the house has fled. So far [BVB15] has not been arrested. Therefore, in order for the Republic of Sri Lanka to question [BVB15], his parents are hereby informed to hand him over to the Sri Lanka Terrorism Investigation Unit. 54 According to the translation, the signatory was described as 'Officer in Charge, Police Station, [village]', although the name of the signatory was illegible. The translation offers no assistance with respect to the different font sizes and printing included in the TIU document. 55 At the hearing the applicant focused on the Tribunal member's response to the offer to provide a translation which was to the effect, 'I will think about it'. Counsel submitted that it was legally unreasonable for the Tribunal not to take further steps to convey to the applicant that the Tribunal was not going to obtain a translation of the document or to give the applicant an opportunity to translate it. 56 However, Judge Street noted the Tribunal member's next words during the hearing: 'I don't think that's actually going to solve my genuine concerns about the nature of the documents provided as well'. Those words 'plainly [put] the [applicant] on notice as to the Tribunal's concerns as to the credibility of the [applicant]' (at [30]). 57 Judge Street also relied upon the delegate's observations (included at [4] above). 58 Judge Street concluded: [34] In circumstances where the applicant was aware that the delegate had raised an issue as to the genuineness of the document and where the applicant was aware that the Tribunal had no translated copy of the document, it cannot be said that the absence of any consideration by the Tribunal as to the obtaining of a translation or not informing the applicant as to the absence of an intention to obtain a translation could be said to lack an evident and intelligible justification. The evident and intelligible justification is that it was patent that the untranslated document was the subject of a live issue in respect of the applicant's credibility and the applicant had ample opportunity prior to the hearing on 2 July 2015 and, indeed, thereafter if the applicant wished, to provide a translation of the document. [35] Further, the applicant was represented at the hearing. The Court does not accept that the comment by the Tribunal, in the context of the transcript as a whole, conveyed that the Tribunal member had engaged in a reservation of a formal request concerning whether or not the document should be translated. [36] It was up to the applicant to establish the applicant's claim. The applicant was represented at the hearing and it was up in lights that the Tribunal member had serious credibility concerns in respect of the applicant's claims and other documents that had been provided, purportedly supporting the applicant's claims in respect of the discovery of guns in the house, in which he was linked to the renting of the same. The appeal to the Federal Court

Grounds 59 The three grounds upon which the applicant relies are related. They are as follows (edited only to use defined terms that are consistent with these reasons): 1. The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it was unreasonable. PARTICULARS (a) The Tribunal erred in rejecting as of little evidentiary weight three letters submitted to the Tribunal in support of the Applicant's claim to fear harm because of military weapons found in his house which he had let to some Tamils, without exercising or considering whether to exercise its powers under section 424(1) or 424(2) of the Migration Act to get further information about the Applicant's claims from the Attorney, the Applicant's father and the Head Man of the Applicant's village who were the apparent authors of letters. (b) The Tribunal erred in that it said at the hearing that it would 'think about' the offer of the Applicant to arrange a translation of the document which the Applicant said was from the Terrorist Investigation Unit ('the TIU document') but: (i) It did not use its powers to obtain a translation of the TIU document; (ii) It did not tell the Applicant what its view was about the Applicant's offer to obtain a translation of the document. (iii) It did not ask the Applicant to get a translation of the document. (iv) It gave little evidentiary weight to the TIU document without knowing what was in it. (Tribunal's reasons. [31]) (v) It made its decision which critically rejected the claim of the Applicant that weapons were found in his house and that he had fear of harm as a result. (Tribunal's reasons. [53]) (c) Further to particular (b), the Tribunal in breach of section 425 of the Act did not allow the Applicant to give evidence or present arguments in relation to the significance of the TIU document. 2. The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in interpreting or applying the law. PARTICULARS (a) The Applicant refers to and repeats the particulars to Ground 1. 3. The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it denied the Applicant procedural fairness. PARTICULARS (a) The Applicant refers to and repeats the particulars to the other Grounds of the appeal. 60 Although the grounds of appeal have been included for completeness, as is apparent from the particulars there is some overlap between them, and the crucial controversies between the parties may be summarised as giving rise to five issues. 61 The first issue relates to the failure of the Tribunal to make certain inquiries of the authors of the three impugned letters, the asserted jurisdictional error being unreasonableness (and no point was taken by the Minister to the effect that it was Judge Lucev, and not Judge Street, who addressed this issue before the FCC) (ground 1(a)). 62 From the submissions, it is apparent that the applicant relies on the line of authorities to the effect that a failure to inquire may in certain circumstances amount to jurisdictional error, although the notice of appeal refers to the Tribunal's failure to make inquiries under s 424(1) and s 424(2). It is convenient to deal with those arguments together. The applicant relies upon AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (Tracey J). 63 The second issue is the failure of the Tribunal to seek a translation of the TIU document (ground 1(b)). 64 The third issue is whether an alternative jurisdictional error had been committed, that being failure to comply with the Tribunal's duty under s 425(1) of the Migration Act (ground 1(c)). 65 The fourth issue is whether there is another head of jurisdictional error that the applicant contends is established (ground 2). 66 The fifth issue is whether the Tribunal denied the applicant procedural fairness (ground 3). 67 A separate issue was raised by a notice of contention filed by the Minister, and relates to whether any error on the part of the Tribunal was material.

Applicant's submissions 68 The applicant contends that, in circumstances where the core of the claim was that guns were found in a house and he was blamed, and where the Tribunal, having regard to the applicant's other evidence, considered the claim to be implausible, then the failure of the Tribunal to make inquiries of the applicant or Australian diplomatic services about the identity and contact details of the attorney or the Head Man, or to seek information from the applicant as to contacting the father, constituted a failure to conduct the statutory task of review. 69 The applicant referred to the statutory task under s 414 of the Migration Act to review the decision of the delegate, and submitted that the statutory context directs attention to s 36(2)(a) and s 36(2)(aa) and whether or not there is a real chance of persecution or significant harm. Against that backdrop, in circumstances where there were three impugned letters that provided ostensibly independent corroboration of 'the core claim', then it was unreasonable in the legal sense for the Tribunal to give them little evidentiary weight without exercising its powers to investigate those documents further when, had it done so, it may have been satisfied that its doubts were well founded, or it may have taken the view that 'although this tale doesn't seem to be particularly likely ... maybe it's true'. 70 The applicant relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, where the majority described a category of error based on a failure to inquire as follows: [25] … It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional errors. 71 It is to be noted that it was not contended in SZIAI that the Tribunal was obliged to exercise its power under s 424 of the Migration Act to obtain particular information (see [17]): the reference by the High Court to a failure to make inquiry as a potential constructive failure to exercise jurisdiction is not directed or limited to the s 424 statutory power. 72 The applicant relies by analogy on AMT15. In AMT15, it was alleged that the Tribunal had erred by failing to make inquiries into a letter provided by the appellant, whether under s 424 'or otherwise'. The letter was in Tamil language on Parliamentary letterhead. It pre-dated the events in question and was not ostensibly a statement or testimonial letter. The document identified the author as a Member of Parliament for a particular district in Sri Lanka, contained telephone numbers, a fax number, a 'hotline' number and a postal address. The letter also advised that a conference was to be held (relevant to the appellant's claim) and provided an agenda for the meeting. 73 The Tribunal referred to the document, saying that it had carefully considered it but that it did not overcome the concerns it had about the appellant's credibility. The authenticity of the letter was not questioned by the Tribunal but the Tribunal declined to give it any weight (at [45]). Justice Tracey said that had the authenticity been established by a telephone call or a fax transmission, it would have had the potential to corroborate the appellant's claims and led to a 'more benign assessment' of credibility. His Honour continued: [45] … It is one thing for a decision-maker, having examined a particular document, to conclude that its contents were insufficient to overcome his or her concerns about an applicant's credibility; it is another altogether for the decision-maker to decline to place any weight on the contents of the document without explaining why the corroborative material in the document should be discounted or ignored. … [47] … in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15's credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction: cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49]-[52] (Nettle J). 74 In forming this view, Tracey J distinguished the facts the subject of AVD15 v Minister for Immigration and Border Protection [2016] FCA 1450, a case where the Court held that the Tribunal had not erred in rejecting a request by the applicant that it make telephone contact with a member of the Sri Lankan Parliament who had provided letters in support of the applicant's claims. Tracey J noted that the letters the subject of AVD15 were testimonial in nature, and the Tribunal had raised the reliability of the letters with the applicant at two hearings, and was not satisfied that they contained material on which it could rely (at [44]). 75 Against the backdrop of those authorities, it was also contended in this proceeding that the Tribunal was obliged to exercise the power conferred by s 424 to seek further information about the three impugned letters.

Principles 76 The following overarching principles are uncontentious: (a) the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [30]; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]; (b) it is for an applicant to advance whatever evidence or argument they wish to advance in support of their claim that they are entitled to a visa. The Tribunal must then determine whether that claim is made out: Abebe at [187]; (c) the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant's case might be better put or supported by other evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36], [49]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; and (d) there is no duty on the Tribunal to make its own inquiries: SZIAI at [1]. 77 As to the jurisdictional error identified in SZIAI, see also Prasad at 169-170 and the summary of the authorities collected by Nettle J in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [49]. Whilst a failure to inquire may render an ensuing decision manifestly unreasonable, such circumstances are rare and exceptional: Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] (Kenny J). 78 In both AMT15 and AVD15 the grounds of jurisdictional error as discussed in SZIAI and relating to the exercise of power under s 424 were in effect dealt with together: AMT15 at [36]-[47]; and AVD15 at [21]. 79 There are some discrete authorities with respect to s 424 that should also be acknowledged, although the outcome for the applicant in this case is the same. 80 The power in s 424(1) is a discretionary power entrusted to the Tribunal and is subject to the implied condition that it be exercised reasonably. In CWY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 86 at [47] Kenny J said 'it may be accepted that the Tribunal's function on review is an inquisitorial one and, in conformity with this, s 424 permitted the Tribunal to obtain information that it considered relevant to the making of the decision on review'. But as the Full Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 said: [33] There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in 'rare or exceptional circumstances'. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J). 81 In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, French CJ and Kiefel J state at [20] that s 424 (along with s 427(1)(d) and s 415) 'do not impose upon the Tribunal a general duty to make inquiries'. Their Honours accepted as correct the view that 'absent any legal obligation imposed on the Tribunal to make an inquiry … by a parity of reasoning … there is no legal obligation to consider whether one should exercise that power' (at [22]).

Consideration 82 I do not consider the applicant has demonstrated that the Tribunal's failure to conduct further investigations into the letters constituted a jurisdictional error, whether by a failure to exercise its power under s 424 or otherwise failing to make inquiries. 83 The content of the three impugned letters was summarised by the Tribunal (see [33] above). 84 The applicant does not refer to any particular 'critical fact' in his submissions. Rather, the submission appears to be that whether or not the letters are genuine is important and so inquiries were obvious, because they may have provided corroborative evidence, and so corroborated the applicant's claims in the face of central adverse credibility findings. 85 The Tribunal's concerns stemmed not from the three impugned letters but from the applicant's own testimony. So much is clear from the evidence and findings referred to at [35]-[45] above, and in particular the conclusion at para 31 of its reasons. For an inquiry to have affected the outcome of the review, it would have had to satisfy the Tribunal that the applicant's claims were to be accepted, despite its view of the fundamental lack of credibility within the applicant's own evidence. 86 The issue to be resolved on an inquiry would not only be whether the letters were authentic, but whether the contents were true and whether the persons alleged to have written the letters were credible. 87 The Tribunal pointed at para 29 of its reasons to issues with the formatting and presentation of the documents that led to it questioning their authenticity, including the type-face and the fact that no names or contact details were provided, as well as the known ease with which forged documents could be obtained, based on country information. On the applicant's argument, the Tribunal would first have been obliged to locate contact details and make inquiries of those who allegedly wrote the letters to ascertain if in fact they wrote them (and, in the case of the letter said to have been written by the lawyer on the father's behalf, that the father authorised its content). 88 The Tribunal would then have needed to assess whether the contents of the letters should be accepted as true. Nothing in the letters suggests that the purported authors of the letters were witnesses to the alleged location or seizure of the guns. The Tribunal's findings did not hinge on what the writers of the letters may or may not have been told by others, or on the veracity of their opinions about the applicant's position, but on the credibility of the underlying claims made by the applicant. There is nothing to indicate what evidence the authors could have given that would have advanced the Tribunal's inquiries one way or another about the core claim made by the applicant that the police found guns in the relevant premises: see generally SZIAI at [26]; and AVD15 at [22]-[23]. 89 Furthermore, as is apparent from the Tribunal's reasons, there were other aspects of the applicant's claim, not referred to in the letters, which led to the Tribunal's finding on credibility. There is nothing to suggest that an inquiry of the purported authors of the letters would have resolved those aspects of the Tribunal's conclusion that the applicant's evidence was not credible. 90 The facts of this matter are distinguishable from those in AMT15. The letter in AMT15 was not a statement or testimonial which had been prepared for the ostensible purpose of aiding the applicant's protection claims, but rather it pre-dated the events, appeared to be on official letterhead and contained numerous contact details for the author. Its authenticity was seemingly not in question. The Tribunal in AMT15 would not have been required to undertake the type of examination and investigation, including locating contact information through Australian diplomatic sources and assessing credibility, that the applicant in this case contends was obvious and should have been undertaken by the Tribunal. 91 It is also important in the context of whether an inquiry was obvious to the Tribunal that the applicant had not himself sought to adduce additional information from the authors of the letters, or sought to adduce any other evidence that may have allayed the concerns as to authenticity that had been expressly raised and recorded by the delegate. The applicant was clearly on notice that the authenticity of the TIU document he relied upon for asserted corroboration had been rejected and so was in issue. The applicant's knowledge that authenticity was in issue is clearly revealed by the submission made by his representative, and recorded at para 30 of the Tribunal's reasons, to the effect that no adverse credibility finding should be made against the applicant based on lack of authenticity of the supplied document. Against that backdrop, it should have been obvious to the applicant that the authenticity of the three impugned letters would also be assessed and considered by the Tribunal. 92 The Tribunal was permitted to reason in the way it did and was not required to make the applicant's case for him. Its duty was to review the decision of the delegate and it was necessary for the applicant to put on material to satisfy the Tribunal of the necessary matters for the grant of the visa. The FCC (relevantly, Judge Lucev) was correct to dismiss the ground of review relating to the three impugned letters. Second issue - the TIU document 93 There are two primary concerns raised by the applicant with respect to the Tribunal's treatment of the TIU document. The first is that it failed to translate the document. The second is that it indicated to the applicant that it would think about doing so, and then failed to notify the applicant whether it did so before delivering the adverse decision. The principles as to inquiries to be made by the Tribunal also apply with respect to this issue. 94 The applicant accepts that the Tribunal knew what the TIU document allegedly said. The applicant told the Tribunal as much. As is apparent from the Tribunal's reasons at para 16 and para 29 (see [31]-[33] above), the Tribunal does not suggest that it did not accept that the TIU document stated that the applicant was wanted for questioning by the TIU in relation to guns found at his house which he rented to three Tamils. This is an important factor which, with respect, was not sufficiently considered by Judge Lucev in the context of the reasons reproduced at [49] above. 95 The applicant then sought to make the point that both Judge Lucev and Judge Street accepted the materiality of the TIU document, if indeed the Tribunal accepted it as credible. 96 The problem for the applicant, however, is that even assuming that in some circumstances it may be an obvious inquiry to obtain a translation of a document to review its content, it is by no means obvious that a translation would have resolved the Tribunal's concerns as to authenticity. The applicant submitted that the Tribunal could then have gone to the Minister's Department and asked that it look at the document and say whether it seemed to be consistent with similar genuine documents. The applicant submits that its precise translated terms 'may have been important as indicating to the Tribunal, perhaps by phrasing or formality whether the Tribunal was prepared to accept that it was a document from some organisation of the police in Sri Lanka, whether [the document] meant what it said'. 97 I am not satisfied that an inquiry of that nature (developed in submissions to a task beyond merely obtaining a translation) was obvious, viewed against the fact that the apparent content of the letter had already been revealed by the applicant. The applicant suggests a translation should have been obtained, not to understand the contents of the document, but to resolve a question as to its authenticity, a question that had arisen taking into account its presentation such as font inconsistencies, lack of date and country information as to the prevalence of forgeries. It is by no means clear that a translation would have obviously assisted in that inquiry, and so much is reinforced by the submission made during the hearing before me that even with a translation, it may have been necessary to form a view based on parsing within the translated document or approach the Department to ascertain whether a document parsed in that way or otherwise might be genuine. 98 The Tribunal had concerns as to the authenticity of the documents, including the TIU document. Having regard to the transcript, it is important to note that where the Tribunal member said that she would 'think about' a translation, it was in the context of expressed doubts as to whether the document was genuine, and not with respect to ascertaining what the document said. The Tribunal viewed the TIU document, as had the delegate. The reasons indicate that the Tribunal doubted the authenticity of the document for reasons it provided, a view that was reasonably open to the Tribunal having regard to the evidence before it and the country information to which it referred. Having formed that view on logical and reasonable grounds, it was not compelled to undertake any further inquiry. 99 Returning to the particulars of the ground, there is nothing in the Tribunal's reasons that suggests, or from which it can be inferred, that it failed to consider, as foreshadowed, whether or not to obtain a translation. The statement that it would 'think about' that point did not comprise an indication that it would exercise its power to seek a translation or to ask the applicant to provide one, but indicated no more than the fact that it would give consideration to that potential. It was not obliged to exercise such power. The Tribunal was not obliged to give reasons for declining to exercise such power: SZGUR at [32]. The claim that the Tribunal gave little evidentiary weight to the TIU document without knowing what it said also fails to take into account that the applicant had informed the Tribunal of its contents. 100 In those circumstances the applicant has not demonstrated that the Tribunal's failure to use its powers to obtain a translation of the TIU document constituted a jurisdictional error, whether by a failure to exercise its power under s 424 or otherwise failing to make inquiries.

Third issue - s 425 101 Section 425(1) of the Migration Act relevantly provides: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 102 The applicant was on notice that there were issues as to the authenticity of the TIU document: (a) the delegate expressly rejected its authenticity in August 2014, some 11 months prior to the hearing before the Tribunal (July 2015); (b) the submissions made on his behalf in writing prior to the hearing before the Tribunal anticipated its authenticity might be rejected (see [34] above); and (c) the Tribunal raised concerns as to whether the document was genuine during the hearing. 103 The applicant submits that the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond. 104 That submission is rejected. The Tribunal's comment did not indicate or represent that any decision it made on that point would be relayed to the applicant, or that there would be any further hearing or opportunity to respond by further submission or otherwise. Nor did the applicant request such a course. It was open to the Tribunal to act as it did and proceed to determine the proceeding without informing the applicant of the outcome of its consideration. 105 The applicant attended a hearing and had every opportunity to produce a translation of the TIU document for the purpose of the hearing but did not do so. It was not for the Tribunal to assume responsibility for or direct the manner in which the applicant might run his case. 106 No jurisdictional error is demonstrated.

Fourth issue - other jurisdictional error? 107 The applicant contends that the Tribunal 'erred in interpreting or applying the law which set out the task that it … had to do in order to review the matter', and relies on the particulars in ground 1. For the reasons given above, the Tribunal did not err in undertaking the statutory task in s 414 of the Migration Act in the manner contended for by the applicant. It made findings on the material before it, and relevantly made findings as to the significance to be placed on the TIU document and three impugned letters. Those findings were made in circumstances where the Tribunal held genuine concerns as to the authenticity of those documents. It could not be said to have failed to review the delegate's decision as to whether the applicant satisfied the protection criteria in s 36(1)(a) and s 36(1)(aa) because of a failure to undertake inquiries as to the veracity of those documents.

Fifth issue - procedural fairness 108 The applicant contends that if the Tribunal conducted itself unreasonably and erred in exercising its powers to get new information then it follows that it did not provide procedural fairness. For the reasons given above, the Tribunal did not act unreasonably by failing to inquire or otherwise err in failing to exercise its powers to get new information. It follows that the Tribunal could not have been said to have denied the applicant a fair hearing in the manner he submits. The applicant was on notice of the concerns as to authenticity of the TIU document from (at least) the time of the delegate's reasons. The applicant had the opportunity to present his case before the Tribunal, and did in fact make submissions as to the relevance and significance of the TIU document and three impugned letters. The matters at [102]-[104] of these reasons are repeated. The Tribunal was not obliged to give a running commentary upon what it thinks about the evidence: SZSYG v Minister for Immigration and Border Protection [2015] FCA 1319 at [29]-[31] (Markovic J); and see generally as to the conduct of reviews under Division 4 of Part 7 of the Migration Act the summary in BLD15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 790 at [24]-[25] (Katzmann J). The applicant has not demonstrated that the Tribunal failed to comply with its obligations under Division 4 of Part 7 of the Migration Act.

Notice of contention 109 In light of the above reasons it is not necessary to determine the matters raised by the Minister's notice of contention, which would involve a consideration of the question to the effect that if I am wrong and there was error on the part of the Tribunal, then such error is not material. I would simply note that to the extent Judge Street observed that the translation of the TIU document that was before his Honour might possibly have impacted on the credibility of the applicant and the outcome of the review, then such observation did not explain or extend to differentiating between any materiality of the content of the translation (as to which the Tribunal was already aware) as against its form. Nor did the observation properly state the principle referred to in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 as to whether having a translated copy of the TIU document could 'realistically have resulted in a different decision'. Nor did it reflect an assessment of the provision of the translation against the other evidence relevant to credibility that was before the Tribunal.

Determination 110 It follows that the FCC did not err in failing to find jurisdictional error on the part of the Tribunal and did not err in dismissing the applications for judicial review.

Costs 111 The usual position as to costs should follow. The applicant should pay the costs of the Minister of the reinstatement application and the appeal, to be assessed if not agreed. 112 The Court extends its gratitude to Mr Krohn for appearing pro bono in this matter. I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Migration Act 1958(Cth)ss 36, 65, 414, 415, 424, 425, 427

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