EOW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1974

1. The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Protection (Class XA) (Subclass 866) visas (protection visas).

1. The first applicant (Applicant) is a citizen of India who entered Australia with his wife (the second applicant) some years ago. The applicants previously applied for protection visas on 17 August 2016, however that application was found to have been invalid.
2. The applicants applied for the protection visas that are the subject of this review on 21 October 2016.
3. On 9 January 2017, the Delegate refused to grant the applicants protection visas.
4. On 30 January 2017, the applicants applied to the Tribunal for review of the Delegate's decision. The applicants attended a hearing before the Tribunal on 9 May 2019.
5. On 31 October 2019, the Tribunal affirmed the Delegate's decision.

1. The Tribunal set out the background to the matter, the applicable criteria and summarised the evidence before it at [1]-[67] of its decision. The Tribunal made the following findings at [68]-[73]:

(a) the Tribunal accepted that the Applicant was an Indian man with ongoing medical concerns relating to prolapsed spinal disks (at [68]);

(b) the Tribunal had concerns about the credibility of the Applicant's evidence in respect of his claims that he borrowed money from a private lender and was threatened and physically assaulted (at [68]);

(c) the Tribunal identified inconsistencies in the evidence, including as to whether money was borrowed from one person (Mr R) or another person (at [68]);

(d) the Tribunal found that the Applicant's claims in his written evidence and oral evidence were inconsistent and that his oral evidence was "internally inconsistent" (at [68]);

(e) the Tribunal found it improbable that the Applicant would report to police that he was physically assaulted but not do so regarding the theft of his gold (at [69]);

(f) the Tribunal found that the Applicant leaving his parents and children residing in a home for which Mr R held the title was not indicative of a person fearing for the safety of his family and himself (at [70]);

(g) the Tribunal considered it unclear why Mr R would have refrained from harassing or threatening the family after the Applicant departed India (at [71]);

(h) the Tribunal accepted that the Applicant attended medical appointments and had been prescribed medication due to a back injury (at [72]);

(i) the Tribunal was not satisfied that the Applicant's back injury was caused by a physical assault (at [72]);

(j) the Tribunal accepted that the Applicant received migration related assistance from a person who was neither a qualified interpreter nor a registered migration agent (at [73]); and

(k) the Tribunal did not accept that the Applicant was assaulted by a person (Mr P) during a dispute concerning his visa application, or that Mr P or his brother ever physically harmed the Applicant (or would seek to do so in the future) (at [73]).

1. At [74]-[76], the Tribunal reasoned:
   1. While each of the above points may not support a conclusive finding as to the applicant's credibility on its own, considering all of the evidence cumulatively and having regard to the applicant's narrative as a whole, I do not find the applicant to be credible. For these reasons, I do not accept that the applicant entered into a private loan or that he or his family have been physically assaulted or threatened. In addition, I do not accept that there are any individuals or groups that would seek to physically assault or threaten the applicant and his family for any reason.
   2. In making this finding, I note that while it is generally supported by the anonymous tip-offs on the Departmental file, I have given the tip-offs minimal weight. The tip-offs were submitted by an anonymous source or sources and there is no evidence to suggest that the Department undertook any investigation into the allegations. Further, the applicant went on to confirm that he submitted two separate and conflicting applications and sought to rely on his oral evidence at the hearing. For that reason, I disregarded the claims made on the second application for protection form.
   3. The applicant claims to fear harm from a money lender and two Indian brothers that assisted with his visa application in Australia. As outlined above, I do not accept that the applicant entered into a private loan or that he was physically assaulted by anyone in association with that loan or his visa applications in Australia. Further, I do not accept that there are any individuals or groups that would seek to locate or harm the applicant on return. It therefore follows, that I do not consider that the applicant's wife has been assaulted or is at risk of harm of these same things.
2. Having regard to the above, the Tribunal concluded that the applicants did not meet the criteria for the grant of the protection visas. Accordingly, the Tribunal affirmed the Delegate's decision (at [77]-[81]).

1. The applicants sought judicial review of the Tribunal's decision through an application filed on 20 November 2019. The matter remained in the central migration docket for some time and was previously docketed to another Judge before being allocated to my docket more recently and listed for hearing. The following grounds of review were stated in the application:
   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.

1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular:

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

1. Ground 1 contended that the Tribunal misconstrued s 36(2A) of the Migration Act 1958 (Cth) (Act), which was as follows:

... (2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

1. As was submitted by the Minister, there does not appear to be any basis for finding that this provision was misconstrued or misapplied by the Tribunal. The provision was set out accurately in an annexure to the Tribunal's decision and there is no suggestion in the Tribunal's reasons for decision that this concept was misunderstood. In any event, the Tribunal did not accept the factual basis of the Applicant's claims. The Tribunal therefore did not find that the Applicant would face a real chance of any type of harm claimed.
2. At the hearing before the Court, the Applicant submitted in relation to this ground that the Tribunal had not asked him for evidence regarding the borrowing of money that he had claimed. Relatedly, in an affidavit, the Applicant complained that the Tribunal "failed to investigate" his claim. However, as was discussed at the hearing, the Tribunal was not under any general duty to make inquiries: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [20], [22], [41] (French CJ and Kiefel J, as her Honour then was); Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1]- [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). I am not persuaded that the Tribunal was obliged to have asked the Applicant for further evidence in the present case, in which the applicants had been provided with opportunities to provide evidence (and had provided certain evidence through this process).
3. Reference was made by the Applicant at the hearing before the Court to the two protection visa applications that he had made (the first having been found to have been invalid). As the Minister submitted, it is apparent from [59] of the Tribunal's decision that the Applicant had confirmed to the Tribunal that he had reviewed both applications and was given the opportunity to make submissions in relation to them. The Tribunal considered the Applicant's submission that the second application contained information that was incorrect and had been provided by another person (at [59] and [68] and [73] of its decision).
4. Having regard to the above, I have not been persuaded that ground 1 is able to succeed.

1. Ground 2 contended that the Tribunal did not issue any invitation under s 424A of the Act. That provision was relevantly as follows:

424A Information and invitation given in writing by Tribunal

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

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

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

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

(3) This section does not apply to information:

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

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

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

1. Contrary to the ground, the evidence before the Court demonstrates that the Tribunal did issue such an invitation in relation to information contained within "anonymous tip-offs" that had been received by the Department (CB 180-183). A redacted version of the underlying material is in evidence. The redactions appear largely directed towards removing identifying information regarding Departmental staff and the source of the information.
2. Having reviewed the underlying information against the s 424A invitation, the information in question appears to have been put to the applicants pursuant to the procedure under s 424A of the Act. The s 424A invitation appears to have given clear particulars regarding the substance of the "information" in question (i.e. the allegations that had been made in the "tip-offs" that had been received by the Department). The invitation explained the potential relevance of the information and informed the applicants that, if the Tribunal relied upon it, it may conclude that the applicants did not meet the criteria for the protection visas. The applicants were invited to comment upon or respond to the information. The applicants have not demonstrated that the procedure utilised by the Tribunal failed to comply with s 424A of the Act. It is not apparent from my reading of the materials how such a finding could be made.
3. It is also not apparent that there was any other "information" before the Tribunal that was capable of enlivening the requirements of s 424A of the Act. Inconsistencies in evidence are not "information" for the purposes of this provision: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [15]- [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
4. It follows that ground 2 is unable to succeed.

1. An affidavit filed with the application to this Court contended bias.
2. As discussed at hearing, there are two potential types of bias that may justify setting aside a decision of the Tribunal. The first is actual bias. Actual bias requires prejudgment in a manner so committed to a conclusion that it is "incapable of alteration", regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). The second is apprehended bias. Apprehended bias requires that a "fair-minded lay observer might reasonably apprehend" that a decision maker "might not bring an impartial mind" to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
3. The applicants were asked why they felt that the Tribunal was biased. The Applicant submitted that he had been "asked many questions" at his hearing before the Tribunal. He submitted that this included repeated questions "to check whether [he] replied the same answer or not". This was said to have created confusion on the part of the Applicant and the Tribunal. This was in circumstances where he had submitted two visa applications, with the second application having been prepared incorrectly by another person.
4. However, the Tribunal was entitled to test the Applicant's evidence, including for consistency. I am not persuaded that this demonstrates bias on the part of the Tribunal. The Tribunal was not obliged to find that the differences in answers were attributable to confusion on the part of the Applicant. The evidence does not demonstrate that the Applicant was relevantly incapacitated from giving evidence before the Tribunal.
5. At the hearing before the Court, the Applicant initially submitted that because he had found the process confusing, he had sought time to submit evidence, which was not provided. I explained that there was no evidence before the Court, such as a transcript of the Tribunal hearing, capable of demonstrating this. The Applicant sought time to put on a transcript. This was opposed by the Minister. I asked some questions in an attempt to understand what the Applicant believed a transcript would show (and, in particular, whether the Applicant had expressly sought further time to provide evidence before the Tribunal or simply thought he would be given more time). I noted some confusion on my part from different answers that had been given regarding what the Applicant was saying occurred at the Tribunal hearing. I also explained the costs consequences that may result if further steps were taken in the matter and the applicants were ultimately unsuccessful. A break was provided, in which the Applicant was encouraged to give the matter some thought.
6. After a break, the Applicant asked for an adjournment of the matter to allow him to talk to a lawyer. I explained the difficulties in allowing a further hearing in the matter. These included the number of matters before the Court that have been waiting some years for hearing. Allowing a further hearing date in this matter would mean that the date could not be allocated to another matter. This meant that there would need to be good reason for allowing a further hearing in the matter. I raised a concern that it was difficult to be confident that adjournment would result in legal representation in the circumstances of this case. This was considering the timing of the request and the fact that it was not clear that the applicants had investigated the terms of such assistance previously. I further discussed what the Applicant believed had occurred at the Tribunal hearing. The Applicant submitted that he was not informed by the Tribunal about the opportunity to submit evidence before its decision but had been told that a decision may be made. However, it was not apparent how this would be capable of demonstrating relevant error on the part of the Tribunal.
7. Having regard to the above, I did not make orders providing for a further hearing date in the matter. However, noting the difficulties that a self-represented litigant may face in articulating their case under the conditions of a hearing, I allowed (without objection from the Minister) some further opportunity to the applicants to file and serve further submissions after the hearing of the matter. This was intended also to provide the applicants with some opportunity to seek legal assistance if they elected to do so. The Applicant suggested that he may use the opportunity to make submissions directed towards the merits of his protection visa application. I explained that this would not assist the applicants, explaining again the limitations of the Court's role in judicial review proceedings. In particular, I explained that the Court's role was not to assess the Applicant's protection claims, but was limited to assessing whether the Tribunal's decision was affected by a legally relevant error. The Tribunal could not have made such an error by failing to consider submissions or evidence that had not been provided to it. The Applicant confirmed that he understood what had been said.
8. Nonetheless, there is a peculiar line in the written submissions filed by the applicants after the hearing. The submissions state that the applicants have "obtained leave from the Federal Circuit and Family Court to provide fresh evidence to the Administrative Review Tribunal". This has not occurred. The written submissions filed by the applicants otherwise appear directed towards the legally relevant grounds that have been raised by the applicants. They follow explanations given at hearing regarding the limitations of the Court's role in this type of proceeding.
9. In relation to the ground of bias, the applicants relied in their written submissions upon the structure of the Tribunal's reasoning. The applicants observed that the Tribunal had, at the commencement of its reasons assessing their claims for protection, stated that it held serious concerns regarding the credibility of the evidence that had been given in support of those claims.
10. However, the structure of the Tribunal's reasons in this matter is incapable of demonstrating bias. Reasons are the product, not the commencement, of the consideration of an applicant's claims. The fact that the Tribunal chose to structure its reasons in a way that noted its concerns before explaining them does not indicate that the Tribunal approached the applicants' case with other than an open mind. As was observed by the Minister, the fact that the Tribunal has made adverse credibility findings is not, itself, capable of demonstrating bias: SZDTQ v Minister for Immigration and Citizenship [2009] FCA 1191 at [73] per Siopis J.
11. Having regard to the above, I am not persuaded that the ground of bias is able to succeed.

1. In their written submissions, the applicants also took issue with what was said to have been the Tribunal's reliance upon "anonymous tip offs to the department". The applicants expressed concerns regarding the origin, validity and reliability of the information, together with the "extent it was relied upon in the decision".
2. At [16]-[28] of its decision, the Tribunal observed that it had written to the applicants in relation to a non-disclosure certificate on file relating to information that had been provided to the Department in confidence (the anonymous tip-offs). This included information that the Applicant had worked in breach of his visa conditions, had engaged in taxation fraud and made false claims for protection. The Tribunal observed that the Applicant had been given the opportunity to respond to the information and set out the responses that he had provided. For the reasons given above, I accept the Minister's submission that the Tribunal complied with s 424A of the Act in relation to the underlying information. As the applicants were notified of the non-disclosure certificate and provided with an opportunity to make submissions, they also appear to have been provided with procedural fairness in relation to the certificate.
3. At [75], the Tribunal reasoned as follows in relation to the information:
   1. In making this finding, I note that while it is generally supported by the anonymous tip-offs on the Departmental file, I have given the tip-offs minimal weight. The tip-offs were submitted by an anonymous source or sources and there is no evidence to suggest that the Department undertook any investigation into the allegations. Further, the applicant went on to confirm that he submitted two separate and conflicting applications and sought to rely on his oral evidence at the hearing. For that reason, I disregarded the claims made on the second application for protection form.
4. I am not persuaded that it was closed to the Tribunal to have placed some (minimal) reliance upon the information in question, having provided the applicants with procedural fairness per the above. The Tribunal was clearly aware of the limitations of the allegations, including by reference to their anonymous nature and the lack of any investigation having been conducted into their veracity. It has not been demonstrated that it was logically closed to the Tribunal to have nonetheless "noted" that its conclusions were "generally supported" by the anonymous tip-offs, whilst also noting the limited probative value of the allegations. It is not apparent from the Tribunal's decision that impermissible or illogical weight was attributed to the allegations in question.
5. In any event, there appears to be no reason for doubting that the Tribunal accorded the "tip-offs" any greater than minimal weight. It is apparent that the reasons the Tribunal gave for rejecting the credibility of the Applicant's claims were substantially set out at [68]-[74] of its decision. Those reasons included limitations and inconsistencies in the evidence that the Tribunal identified, as well as what the Tribunal found to be the improbability of aspects of the Applicant's claims. These matters were expressed to have informed the adverse credibility conclusions reached by the Tribunal, which were set out at [74] of the Tribunal's decision. Within this context, it is not apparent that the information from the "tip-offs" materially impacted upon the conclusions reached by the Tribunal.

1. In written submissions filed after the hearing before the Court, the applicants suggested that the "tribunal member failed to consider the magnitude of the situation, the seriousness of the threats made against the applicant or the impact it had on the applicant at the time".
2. This complaint appears to be directed towards disagreement with the merits of the Tribunal's conclusions. However, as was explained at hearing, it is not open to the Court to overturn the Tribunal's decision based upon disagreement alone. It has not been demonstrated that it was relevantly closed to the Tribunal to have not accepted the factual basis of the Applicant's claims. I accept the Minister's submission that it was open to the Tribunal to have had concerns regarding the credibility of the Applicant's claims by reference to the inconsistencies and other issues that it identified in the evidence and that are summarised above. Having not accepted the Applicant's claims, it cannot be said that the Tribunal's decision turned upon some failure to consider "the magnitude of the situation", the "seriousness of the threats" or the impact upon the Applicant. Rather, the Tribunal did not accept that the threats occurred nor that the situation was as the Applicant had claimed.

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.