FEDERAL COURT OF AUSTRALIA

BGY15 v Minister for Immigration and Border Protection [2018] FCA 217

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely on grounds of appeal not advanced before the primary judge.

2.    The appeal is dismissed.

3.    The Appellant pay the First Respondent’s costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    The Appellant is a Sri Lankan citizen who left Sri Lanka in May 2012 and arrived on Christmas Island in June 2012. The Appellant applied for a Protection (Class XA) visa (the visa) in November 2012. A delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa on 18 October 2013.

2    The Appellant applied to the then Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. On 16 June 2015 the Tribunal found that the Appellant did not satisfy s 36(2) of the Migration Act 1958 (Cth) (the Act) and accordingly refused to grant the visa.

3    The Appellant applied to the Federal Circuit Court of Australia (the FCCA) for judicial review of the Tribunal’s decision and on 1 February 2017 a single judge of the FCCA dismissed the application for review: see BGY15 v Minister for Immigration and Border Protection [2017] FCCA 110. On 15 February 2017, the Appellant appealed that decision to this Court.

the APPELLANT’S CLAIMS

4    The Appellant’s claims are to be understood as including those referred to in his visa application as it appears in the Appeal Book, in his “irregular maritime arrival entry interview” and in the Appellant’s statutory declaration filed in support of his visa application. In summary, the Appellant claims to fear harm from the Sri Lankan authorities upon returning to Sri Lanka on the basis of his ethnicity, on the basis of imputed association with the Liberation Tigers of Tamil Eelam (the LTTE), because of his use of fraudulent identity documents, his illegal departure from Sri Lanka, and/or his status as a failed asylum seeker.

5    The Appellant provided consistent accounts of incidents involving the Sri Lankan Navy, Army and Police. The Appellant claimed that he was arrested in 2006 on the basis of his birth place in Alambil. The Appellant claims that he and his father were fishermen in Sri Lanka and that in 2010, members of the Sri Lankan Navy beat and threatened him, his father and his mother. They had interrogated him. Details of his claims regarding this incident are set out at [6] to [12] of the Tribunal’s decision.

6    The Appellant claims that in around 2011 the Sri Lankan Navy told the Appellant and his father that they could not fish before 5.00 am. When the Appellant and his father set out to fish at 3.00 am, Navy officials fired three warning shots into the sky. The Appellant claims that in 2012 the Sri Lankan Navy shot at the Appellant and his father when their fishing net drifted into a Navy area. The Appellant and his father were called ashore. The Navy warned them that this was the last time they would be released, and if it happened again, they would be shot and killed. The Appellant claims that he and his father were interrogated for an hour.

PROCEEDINGS BEFORE THE TRIBUNAL

7    The Tribunal’s reasons were carefully and accurately summarised by the primary judge at [13] to [20] of his Honour’s reasons. That summary is as follows:

13.    Over 117 paragraphs of reasons the Tribunal addressed the claims advanced by the applicant.

14.    The Tribunal made a collection of findings, many of which bore upon the grounds of review urged by the applicant. It is as well to set them out.

15.    The Tribunal recorded the consistency in the account given by the [Appellant] of incidents between him and the SLN during the years 2010, 2011 and 2012. The Tribunal also recorded its acceptance of an incident when the applicant’s father’s boat was damaged after being required to put to sea in windy conditions. The Tribunal accepted that the incident there described had in fact occurred. The Tribunal also stated that it was satisfied that those incidents were the result of war. The Tribunal stated it was satisfied that no repercussions arose from those incidents prior to the applicant’s departure from Sri Lanka.

16.    The Tribunal further stated that it was not satisfied that a real chance existed that the [Appellant] would face any harm on the basis of past experiences in Sri Lanka. The Tribunal stated it was not satisfied the [Appellant] had a well-founded fear of persecution. The Tribunal was not satisfied that the [Appellant] was of any adverse interest to the Sri Lankan authorities by the time he left Sri Lanka.

17.    In paragraph 54 of its reasons, the Tribunal recorded the [Appellant’s] stated main concern, namely, fraudulent documents. Details of the [Appellant’s] documentation that was, or was said to have been, fraudulent were recorded between paragraphs 30 to 41 of the Tribunal’s reasons and elsewhere such as in paragraphs 44 to 52 and between paragraphs 54 to 61. The [Appellant] stated that no authorities were aware he had fraudulent documents but he said that if he was sent back to Sri Lanka, the authorities would check his passport and identification details and fraudulent documents would lead to his being suspected of belonging to the LTTE.

18.    The Tribunal found that the Sri Lankan authorities would not suspect the [Appellant] of LTTE affiliations merely on the basis claimed. The Tribunal was not satisfied that the [Appellant] would be associated with LTTE on the basis of his Tamil race or that he was a Tamil from the northern province of Sri Lanka, nor did the Tribunal accept that the [Appellant] would face a real chance of serious harm on the basis of his failed asylum seeker status or his illegal departure from Sri Lanka or that any consequence would flow from that status.

19.    So far as the complementary protection criteria were concerned, the Tribunal was not satisfied there was a real risk the [Appellant] would suffer significant harm if he were to be questioned upon returning to Sri Lanka. The Tribunal was also not satisfied that the [Appellant] would face a real risk of significant harm if the [Appellant] spent a relatively short period on remand following a charge under the Immigrants and Emigrants Act (Sri Lanka) or if a fine were imposed upon him.

20.    In the result, having considered the [Appellant’s] claims individually and cumulatively, the Tribunal found that there was no substantial ground for believing that, as a necessary and foreseeable consequences of the [Appellant] being removed from Australia to Sri Lanka, there was a real chance that the [Appellant] would suffer serious harm or a real risk that the [Appellant] would suffer significant harm.

PROCEEDINGS before THE FEDERAL CIRCUIT COURT

8    Before the FCCA, the Appellant asserted that the Tribunal’s decision was affected by jurisdictional error on three grounds, set out at [3] of the primary judge’s reasons:

1.    The Tribunal failed to consider whether, on the basis of the [Appellant’s] past experiences, he would face persecution were he to return to Sri Lanka to work as a fisherman;

2.    The Tribunal asked itself the wrong question when considering whether the [Appellant] had a well-founded fear of persecution;

3.    The Tribunal failed to consider properly whether the [Appellant] met the complementary protection criterion on the basis of the harm that he claimed to have suffered.

9    The primary judge dealt with those grounds at [22] to [48] of his Honour’s judgment. With respect to the Ground 1, his Honour noted that the Appellant’s counsel had submitted that, given the incidents between the Appellant and the Navy, the Tribunal should have considered whether, if the Appellant returned to Sri Lanka, he could reasonably be expected to work other than as a fisherman; and that he would be required to “live discreetly” so as to avoid persecution by reason of the fact that he was unable to work as a fisherman as he was too fearful. The Minister had submitted that it was unnecessary for the Tribunal to make such findings because the Tribunal had concluded that the war had ended and so any factual basis for the Appellant’s claims to fear harm no longer existed.

10    The primary judge accepted that the Minister’s submission that the Tribunal had not made a jurisdictional error was correct, as the war in Sri Lanka had come to an end. The Tribunal had concluded that the cause for the Appellant’s claimed fear of harm was no longer in existence and noted in that regard that the Appellant had returned to Sri Lanka from India in 2012 without any difficulties. The primary judge held that it had been open to the Tribunal to find that the Appellant would not suffer serious harm upon returning to Sri Lanka. The primary judge reasoned at [32] to [34] citing the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 that, where an appellant:

…is able to avoid persecution by acting discreetly or otherwise modifying his or her behaviour, the Tribunal must also consider what would happen to the applicant if he or she did not modify his or her behaviour. If the reason for the modified behaviour is the applicant’s fear of persecution, and that fear is well-founded, then the applicant might assume refugee status in accordance with article 1A(2) of the 1951 Convention Relating to the Status of Refugees.

However his Honour found that in BGY15’s case, because the war had ended, the Appellant would not be required to modify his behaviour.

11    The primary judge referred to the Tribunal’s findings at [73] that it did not accept the Appellant’s claim to be at risk of harm on return to Sri Lanka on the basis of his ethnicity, and as a consequence it had been unnecessary for it to consider the Appellant’s claim that he would face harm if he were to resume working as a fisherman upon his returning to Sri Lanka. Coupled with a concession made by the Appellant that he did not have any concerns when he returned to Sri Lanka from India in 2012, his Honour reasoned that the second part of Ground 1 had not been made out.

12    With respect to Ground 2, the Appellant’s counsel had submitted before the primary judge that the Tribunal had asked itself a wrong question within the meaning of Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163. In that respect, the primary judge reasoned:

37.    In essence, the [Appellant] took issue with the Tribunal’s findings in paragraph 55 of its reasons that “[t]here were no repercussions from those events”. A fair reading of the Tribunal’s reasons showed that events canvassed by the phrase “those events” was a reference to events in 2010, 2011 and 2012, being events referred to in paragraphs 23, 24, 25 and 28 of the Tribunal’s reasons. The [Appellant’s] real complaint, as Ms Martin explained, was that the repercussions were not specified.

38.    Pausing there, in the [Appellant’s] written submissions the issue to which ground 2 was said to be directed was the “absence of there being repercussions” yet in the Appellant’s verbal submissions, the issue was said to be that the so-called repercussions were unspecified.

39.    The Minister submitted that ground 2 was without merit. Ms Lucas submitted that the Tribunal accepted the occurrence of the relevant events, yet nothing arose out of them that could have given rise to a well-founded fear into the future. In her written submissions, Ms Lucas argued that the absence of any incidents having occurred for some time prior to the [Appellant’s] departure from Sri Lanka was relevant to the determination of the existence of a real chance that the [Appellant] would suffer serious harm. That was to be contrasted with the existence of “a remote or far-fetched possibility”.

13    The primary judge accepted that the Minister’s submissions had properly addressed and dealt with the ground as then advanced.

14    Ground 3 involved an assertion that the Tribunal had failed to consider whether the Appellant satisfied the complementary protection criteria. The Appellant submitted that the Tribunal gave insufficient consideration to the issue. However the primary judge found at [46] that, “once the factual foundation for the Convention claim was determined adversely to the [Appellant], it did not automatically follow that the complementary protection claim had to be considered”, and that, “where factual findings relevant to Convention matters effectively disposed as well of complementary protection matters, no jurisdictional error is made by the Tribunal when omitting to deal specifically with matters under the rubric of complementary protection.”

15    At the FCCA hearing, the Appellant’s counsel also sought leave to rely on a further ground of appeal. The primary judge did not grant leave to include that additional ground, holding it had no merit.

BEFORE THE FEDERAL COURT

16    Before this Court, the Appellant advanced three grounds of appeal:

1.    The Tribunal accepted that the [Appellant] would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.

2.    The learned judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not.

3.    The Tribunal erred jurisdictionally by breaching section 424A of the Act. It has not given to the appellant clean particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the Migration Act.

17    The Notice of Appeal also states that “the appellant reserve[s] his right to amend the grounds of appeal when the reason for the learned judge’s decision come[s] to hand”. However, no amendment was later proposed.

18    The Appellant did not file any written submissions.

Grounds advanced that were not before primary judge

19    Before turning to the grounds of appeal asserted, I should address a preliminary matter. In the written submissions filed by the First Respondent (the Minister), he notes that the grounds of appeal advanced before this Court are different to those pursued before the FCCA. The Minister submitted that it would be convenient to consider these grounds on their merits without formally opposing these grounds of appeal being raised. The Minister submits they have no merit and, accordingly, this appeal should be dismissed with costs.

20    At the commencement of the hearing, I sought confirmation that the Minister did not press any objection based on the grounds asserted having not been advanced before the primary judge. Initially, counsel for the Minister indicated that a formal objection was pressed, but then, having regard to his instructions, withdrew that proposition. Nonetheless, this Court must consider whether it is appropriate to permit such grounds to be advanced. In the ordinary course, a party to an appeal is not to be permitted to rely on a contended error not pressed in the court below: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 and Coshott v Crouch [2017] FCAFC 135.

21    However, that rule is not inflexible, particularly in the instance of a vulnerable self-represented applicant and. In that regard, I adopt the comments of Logan J in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 at [9]:

In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

22    As the Minister has not objected to this appeal being determined on its merits, the Court will proceed on that basis, but on the understanding that the errors of the Tribunal referred to in Grounds 1 and 3 as advanced before this Court must be understood as alleging errors on the part of the primary judge in accepting the impugned reasoning of the Tribunal.

Ground 1

23    Ground 1 asserts an error on the part of the Tribunal in accepting that the Appellant would be detained for a period on return to Sri Lanka without also assessing whether such detention would result in persecution. As I have noted, that ground was not raised in those before the primary judge. Before Wilson J, the Appellant submitted that he would face persecution on returning to Sri Lanka on the basis of his past experience rather than that he would do so because he would be detained upon arrival. The primary judge comprehensively addressed the ground as advanced by the Appellant at first instance and found that because the war had now concluded, the Appellant would not face persecution on the basis that he had claimed.

24    With respect to Ground 1, the First Respondent (the Minister) filed written submissions. Those relating to the first ground are at [13] to [16]:

Ground 1

…

13.    The Tribunal found that the Appellant was likely to be remanded briefly pending charge for departing Sri Lanka illegally [AB 330 [76], 333 [92], 334 [94]]. It appears that the Appellant is now contending that the Tribunal erred in not considering whether the finding of a brief period of remand would entitle him to the grant of a protection visa on the basis that such a period of remand would result in persecution, engaging s 36(2)(a) of the Migration Act 1958 (Cth).

14.    This ground must be rejected. It appears from the Tribunal’s reasons that it did have regard to this matter in the context of s 36(2)(a): AB 328-331 [62]-[81]. These findings were not confined to the context of complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) as then in force.

15.    Moreover, there was nothing to suggest that remand would have a nexus to a Convention reason – to the contrary, the Tribunal found that enforcement of the relevant Sri Lankan law was not discriminatory: AB 331 [77], [79].

16.    No error is shown in the Tribunal’s decision.

25    Insofar as it is relevant to Ground 1, when the Appellant appeared before this Court, he appeared without legal representation. He made oral submissions that upon returning to Sri Lanka he would be questioned about why he held a false identity document and that if he did not give a satisfactory explanation, he would be suspected of LTTE involvement, which might lead to his lengthy imprisonment. He submitted the Court should give considerable attention to those circumstances. The Minister’s counsel, in response, drew the Court’s attention to what appears at [78] of the Tribunal’s decision:

The [Appellant] stated that his main concern was the false documents. If he had just departed illegally the country information was correct. His situation was exacerbated by the use of false identity documents which might raise questions as to why he had obtained those documents. However, on his own evidence, the [Applicant] had never been arrested, he was not recorded in the CID database, he lived in Udappu all his life and had twelve years of education there, and the country information indicates that many people had false documents. The Tribunal does not accept that there is any reason to suspect the [Appellant] of LTTE affiliations.

In the Court’s opinion, those findings of the Tribunal provide a complete answer to the propositions advanced orally by the Appellant in this appeal.

26    For the reasons advanced by the Minister I am not persuaded that any error has been disclosed in the Tribunal’s reasoning.

27    At [62] to [81], the Tribunal considered whether the Appellant was likely to face arrest, detention and persecution upon return to Sri Lanka. Specifically, at [75] to [80], the Tribunal found, on the basis of available country information, that it was likely the Appellant would be arrested on return and charged under Sri Lankan law for having departed illegally. That would likely result in a short period of detention before being brought before a magistrate and bailed.

28    This Court’s task is to review a decision for asserted error of law. It cannot, constitutionally, unless legal error has been identified, substitute its findings for those reached by a Tribunal. No such legal error is asserted, or was identified in the course of the hearing, in respect of the Tribunal’s conclusion at [78]. Ground 1 must be dismissed.

Ground 2

29    This ground was also not raised before the primary judge. The Appellant made no oral submissions before this Court relevant to Ground 2. The Minister’s written submissions addressed Ground 2 at paragraphs [18] to [20]:

Ground 2

…

18.    The primary judge did not make any such holding, because the issue was not raised below.

19.    It appears that the Appellant is now seeking to challenge paragraphs of the Tribunal’s reasons where it says that it considered his circumstances “individually and cumulatively”: AB 331 [81], 334 [98].

20.    The Appellant has not identified or explained any failing of the Tribunal. As the primary judge observed, “[o]ver 117 paragraphs of reasons the Tribunal addressed the claims advanced by the applicant”: AB 381 [13]. It considered all of the claims made by the Appellant, and the Tribunal said that it took them into account individually and as a whole. There is no basis in the Appeal Book for not taking the Tribunal at its word.

30    At [19], the Minister submits the Appellant seeks to challenge the Tribunal’s conclusion that the Appellant’s circumstances were addressed “individually and cumulatively”. If so, the Appellant has not identified any legal error in the primary judge’s reasons.

31    I note the Minister’s reference in his written submission to [13] of the primary judge’s reasons in which his Honour observed that over 117 paragraphs of reasons, the Tribunal had addressed the claims advanced by the Appellant. The Tribunal itself stated at [98] that it had considered the Appellant’s claims individually and cumulatively. This Court, having itself examined the Tribunal’s decisions, has identified nothing to occasion any scepticism regarding that statement.

32    The primary judge’s reasons demonstrate that he, too, had regard to the entirety of the Appellant’s claims:

26.    On the facts of this case, the war in Sri Lanka had come to an end by the time the Tribunal dealt with this application. Following the cessation of war, no repercussions had arisen from those events. Not only did the Tribunal find that the cause of the [Appellant’s] claim to past harm no longer existed, but the Tribunal found that the [Appellant] had returned from India in 2012 with no difficulties. Further, at paragraph 22 and 37 of its reasons, the Tribunal found that the [Appellant] had stated he was no longer concerned about returning to Sri Lanka. In my view, it was open to the Tribunal to find that the [Appellant] would not suffer serious harm upon returning to Sri Lanka. I reject the [Appellant’s] contention that the [Appellant] “could be at risk of harm if he were [to return to Sri Lanka] to be a fisherman”. The events in Sri Lanka of 2010, 2011 and 2012 had passed after the cessation of the war. In her address to me Ms Martin stated that the war officially came to an end in May 2009.

…

28.    By 2015, when the Tribunal heard the [Appellant’s] application in this case, the war in Sri Lanka had been over for six years or thereabouts. The events on which the [Appellant] relied as grounding his fear had ceased. It seemed to me that the Tribunal correctly applied the substance of the reasoning in Guo by engaging in the predictive exercise there under consideration. It was open to the Tribunal to conclude that the war had ended and so the episodes on which the [Appellant] relied, themselves the result of war, did not provide a basis for the [Appellant’s] contention that he would face harm by reason of past experiences.

29.    In any event, the [Appellant’s] own evidence was to the effect that he was not concerned about returning to Sri Lanka in 2012, as was recorded in paragraphs 22 and 54 of the Tribunal’s reasons. That evidence tended to dispel the [Appellant’s] assertion that he feared returning to Sri Lanka.

30.    But the [Appellant’s] ground 1 had two parts. The above matters only addressed the first part of ground 1.

31.    The second part of the [Appellant’s] ground 1 related to his assertion that if he returned to Sri Lanka he would not resume as a fisherman.

32.    Correctly, in my view, Ms Lucas relied on the behaviour modification concepts set out by the High Court in Appellant S395/2002. There, it was held that in circumstances where the applicant is able to avoid persecution by acting discreetly or by otherwise modifying his or her behaviour, the Tribunal must consider why the applicant would act in that modified manner and the Tribunal must also consider what would happen to the applicant if he or she did not modify his or her behaviour. If the reason for the modified behaviour is the applicant’s fear of persecution, and that fear is well-founded, then the applicant might assume refugee status in accordance with article 1A(2) of the 1951 Convention Relating to the Status of Refugees (“the Convention”).

33.    Here, the alleged behaviour modification was premised on the events that had occurred during the civil war. As recorded above, the civil war ended in 2009.

34.    The Tribunal found in paragraph 73 of its reasons that it did not accept that the [Appellant] will be at risk of harm on return to Sri Lanka on account of his ethnicity. That finding rendered it unnecessary for the Tribunal to consider what might happen if the [Appellant] were to resume working as a fisherman upon his return to Sri Lanka. That finding applied irrespective of the work the [Appellant] pursued on his return to Sri Lanka. Coupled with the concession made by the [Appellant] that he did not have any concerns when he returned to Sri Lanka from India in 2012, it seemed to me that the second part of ground 1 had not been made out.

33    I am, therefore, satisfied that the primary judge did not err by failing to find the Tribunal had not considered all of the Appellant’s claims either individually or cumulatively. The Appellant has demonstrated no appealable error in relation to Ground 2. I dismiss that ground.

Ground 3

34    The third ground of appeal is that the primary judge erred in failing to find that the Tribunal did not comply with s 424A of the Act in that it did not provide the Appellant with “clean particulars” and acted in haste in refusing the application. The Appellant made no oral submissions in relation to that ground. The Minister’s written submissions were as follows:

Ground 3

…

22.    This ground should be rejected.

23.    First, there is nothing to suggest that the Tribunal acted in haste (whether that would matter in any event need not be addressed). A hearing tool place on 12 March 2015 and the Tribunal did not publish a decision until 16 June 2015: AB 318, 319 [3].

24.    Second, the fact that the Appellant was unsuccessful is not a ground of jurisdictional error. Merits review is no part of the function of the Federal Circuit Court or this Court

25.    Third, there is nothing to suggest that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).

26.    Section 424A does not apply if the Tribunal has complied with s 424AA by providing those particulars at the oral hearing: s 424A(2A). Under s 424A, particulars of country information need not be provided: s 424A(3)(a). And doubts about the evidence are not “information” within the meaning of these provisions: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1990 at 1196 [18]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 514 [23]. In reaching its decision, the Tribunal relied upon country information and its own doubts about the evidence which did not, under these provisions, have to be disclosed.

27.    Moreover, the reasons of the Tribunal reveal that it did put a lot of matters to the Appellant, whether or not it was obliged to do so [see, eg, 328 [59], 328 [63], 329 [68], 330 [75]]. An objective reading of the Tribunal’s reasons do not support the Appellant’s contention.

35    The Minister submits that acting in haste, in and of itself, without that giving rise to a consequential appealable error, is not a recognised ground of appeal. In addressing the substance of the issue, the Minister notes (at [23]) that the hearing before the Tribunal took place on 12 March 2015, and its reasons were not published until 16 June 2015. On that basis I am satisfied that the primary Judge did not err by failing to find the Tribunal’s decision was deficient, or overlooked some aspect of the Appellant’s claim as a consequence of haste. There was no haste.

36    In relation to the proposition that the Tribunal failed to provide clean particulars, the Minister submits at [26] that, pursuant to s 424A(2) of the Act, there was no requirement on its part to provide particulars in writing and to provide particulars of country information provided it had provided adequate particulars to BGY15 during his oral hearing. Those submissions must be accepted.

37    The Minister correctly submits that doubts about an applicant’s evidence are not information within the meaning of s 424A of the Act, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507. The Minister submits that, notwithstanding, at the hearing, the Tribunal put matters of concern to the Appellant, and gave him the opportunity to respond to them. He refers to [59], [63], [68] and [75] of the Tribunal’s reasons to evidence that. I accept that to have been the case. Rather than failing in its duty, the Tribunal’s reasons reveal that it approached its task with exemplary regard to giving the Appellant a fair hearing.

38    Insofar as the Tribunal relied on information it was required to disclose to BGY15 prior to making its decision, it did so. The Appellant’s third ground of appeal must also fail.

39    I have referred earlier to the fact that the Appellant sought to reserve his right to amend the grounds of appeal upon receiving the reasoning of the primary judge. As no such application was made I need not consider that further.

40    None of the grounds advanced in this appeal have been made out. The appeal is dismissed. The Appellant is to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    7 March 2018