Abs16 v Minister for Immigration

[2017] FCCA 2722

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABS16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2722

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s adverse credibility findings were open to it – whether Administrative Appeals Tribunal erred in the weight it gave the applicant’s evidence – whether the Administrative Appeals Tribunal erred in incorrectly referring to the applicant’s country of origin – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 36(2A), 65, 411, 422B, 424A, 424AA, 425, 474, 476
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Cervantes v Minister for Immigration and Citizenship [2012] HCATrans 123 (21 May 2012)
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014)
Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95

Applicant: ABS16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 40 of 2016

Judgment of: Judge Emmett

Hearing date: 1 November 2017

Date of Last Submission: 1 November 2017

Delivered at: Sydney

Delivered on: 1 November 2017

REPRESENTATION

Applicant appeared in person with an interpreter

Solicitors for the Respondents: Mr Andrew Keevers
Sparke Helmore

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 40 of 2016

ABS16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 January 2016 (“the Tribunal”), in which the Tribunal affirmed a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a protection visa.

2. The applicant is a citizen of Pakistan who fears harm from Sunni militants in Pakistan as a result of his conversion to Shia Islam and his involvement in protests against Sunni militant activity.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 21 February 2014, the applicant arrived in Australia, having departed legally from Pakistan on a passport issued in his own name and a FA 600 Visitor visa valid until 7 March 2014.

2. On 28 February 2014, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 12 September 2014, the Delegate refused the applicant’s application for a protection visa.

4. On 8 October 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 5 January 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 11 January 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “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.

   425  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.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He was born into a Sunni Muslim family. In 1997, he met a Shia man, Mr A, who was a customer of his garment business. They became close and discussed the Shia religion. The applicant was also influenced by a Shia theologian. He decided to change religion because there are no Shia terrorists. He taught the Shia religion to his older brother. On 14 June 2000, the applicant and his brother converted to Shia and began to attend Shia gatherings during the religious month of Moharram.

   b)The applicant’s conversion deeply angered members of the Sunni community, particularly those belonging to one of the emerging terrorist groups operating in the area. The applicant and his brother became prominent in the area as they organised rallies and processions against these terrorist groups.

   c)On 9 November 2003, some terrorists came to the applicant’s office and started shooting. His brother was killed and the applicant was seriously injured. The applicant lodged a First Information Report (“2003 FIR”) with the local police.

   d)Following the attack, the applicant began to receive threatening phone calls forcing him to drop the case. The callers also demanded that he give money for work against American invaders in Afghanistan and drone activities in Pakistan. The callers threatened to kill the applicant if he did not comply.

   e)The applicant went into hiding after his brother’s murder and remained in hiding until he came to Australia. He continued to live at the same address. But instead of going to his workplace every day, he only went two or three times each week. Despite taking such precautions, the applicant was still attacked between 30 to 35 times by unknown people armed with sticks, knives and pistols who beat him and his employees and tried to kill him.

The Delegate’s decision

1. On 10 September 2014, the applicant attended an interview with the Delegate.

2. The Delegate noted that the applicant had continued to attend his work place regularly during the time he claimed to be under threat from his attackers. The Delegate also noted that the groups which he claimed were targeting him could easily have killed him had they wished to do so.

3. The Delegate noted that the applicant had travelled overseas on a number of occasions following his brother’s murder, but had never sought protection in those countries. The Delegate found that this indicated the applicant was not fearful of harm from Sunni Muslims in Pakistan.

4. The Delegate then noted that the applicant had not provided any written evidence of his conversion. The Delegate noted that it doubted that the applicant had converted to Shia Islam as claimed or that his brother had been murdered.

5. The Delegate did not accept that the applicant faced a particularly serious attack at his workplace in January 2004. The Delegate found that the applicant’s claim was concocted in order to support his claim for protection in Australia.

6. On 12 September 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 7 October 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 27 October 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 2 December 2015 to give oral evidence and present arguments.

3. On 2 December 2015, the applicant attended the Tribunal hearing and gave evidence with the assistance of an Urdu interpreter. The applicant was represented in relation to his review by his registered migration agent. The representative attended the Tribunal hearing.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The applicant provided post-hearing submissions to the Tribunal on 17 December 2015. In those submissions, the applicant’s migration agent noted that the applicant had provided copies of three First Information Reports; one relating to the death of the applicant’s brother, being the 2003 FIR; one to an attack on some of his employees (“2013 FIR”); and, another which contained false allegations against him that was lodged to scare him (“2014 FIR”).

6. The Tribunal, in its decision record, noted that the applicant’s post-hearing submissions stated that the applicant was unable to understand the questions put to him at the hearing and was therefore confused and could not clarify issues which were raised.

7. The Tribunal found the applicant was not a witness of truth.

8. The Tribunal noted that the applicant, when asked at the Tribunal hearing why he had converted to Shia Islam, was unable to provide a cogent explanation for his decision. The Tribunal noted the applicant’s explanation that he was influenced by a Shia friend and a Shia cleric, and changed his religion because Sunnis were violent, but Shias were not. The Tribunal found that if the applicant had genuinely converted from Sunni Islam to Shia he would have been able to provide a more detailed and convincing account of his reasons for doing so.

9. The Tribunal then found that the applicant’s explanation regarding how he was able to remain in Pakistan for over 10 years after his brother’s death despite being under constant threat from extremist groups who wished to kill him was “contradictory and implausible”. The Tribunal noted that the applicant had stated in his submissions to the Department that he was in hiding but that he also continued to go to work several times a week. The Tribunal noted that the applicant also stated in those submissions that he continued to live at the same residential address.

10. The Tribunal then noted that at the Tribunal hearing it put to the applicant its concern that it seemed unlikely that the extremist groups could not have followed the applicant to his house from his place of work. In response, the applicant changed his evidence and claimed for the first time that he had moved several times when the situation became dangerous. The Tribunal noted that the applicant also claimed for the first time at the hearing that he had travelled abroad to avoid problems when the situation became dangerous. The Tribunal noted that the applicant was unable to provide any details of when and why he travelled abroad to seek protection; or any plausible reason why he had returned to Pakistan rather than seek permanent protection abroad.

11. The Tribunal found the applicant’s claim that he was able to avoid death or serious harm for over 10 years in Pakistan by reducing the number of days he worked, despite being targeted by a group of extremists who wished to kill him, to be far-fetched and implausible.

12. The Tribunal then noted the applicant’s claim in his submissions that he was not killed because the terrorists could not find him, was at odds with the evidence that the terrorists came to his office over 30 times and that he was beaten on at least some of those occasions. The Tribunal found the applicant’s claim to be implausible given the Tribunal’s finding that the applicant was never in hiding.

13. The Tribunal noted that when it pointed out to the applicant that the terrorists had found him more than once, the applicant claimed they had only wanted to frighten him so he would return to Sunni Islam. The Tribunal noted that the applicant changed his claims again when the Tribunal noted they were at odds with his earlier evidence.

14. The Tribunal noted the applicant claimed that he had not been killed because his office was on the main road and the shots would have been heard. The Tribunal noted that this claim was at odds with the applicant’s evidence that his brother was killed at the applicant’s office in December 2013.

15. The Tribunal found these inconsistencies to be a further indication that the applicant had not provided honest evidence regarding his circumstances in Pakistan.

16. The Tribunal noted that the applicant was unable to provide a coherent or plausible account of the problems he faced following his alleged conversion. The Tribunal noted the applicant’s claims that he was attacked between 30 and 35 times prior to his departure from Pakistan and that his brother was killed, and the applicant was seriously injured in 2003 during of these attacks.

17. The Tribunal noted the applicant had stated, in submissions to the Department, that he and his employees had been beaten during these attacks and that during the Tribunal hearing the applicant said that someone was injured during every attack. The Tribunal found the applicant’s evidence that none of his employees had left the business despite being hit or cut several times a year, to be implausible.

18. The Tribunal then noted its concern regarding the applicant’s claim that two of his employees were shot in December 2013. The Tribunal noted that the claim was not subsequently mentioned by the applicant in his submissions to the Department. The Tribunal did not accept that the applicant’s employees were shot in December 2013.

19. The applicant claimed that the 2014 FIR was lodged against him in February 2014 to scare and threaten him. The Tribunal found that claim to be confused and unconvincing. The Tribunal found that it was implausible and convenient for the applicant’s case that members of a terrorist group who had been trying to kill him for over 10 years, would accuse him of murder shortly after he was issued with a visa for Australia. The Tribunal did not accept that the 2014 FIR was lodged in February 2014 falsely accusing the applicant of murder and found that document provided by the applicant to be fraudulent.

20. Having considered all of the evidence, and taking account of the inconsistent and implausible nature of the applicant’s claims, the Tribunal did not accept any of them. The Tribunal found that the applicant’s claims were concocted to support his application for protection in Australia.

21. Having considered the applicant’s claims, the Tribunal found that there was no credible evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Pakistan, and therefore that the applicant did not have a well-founded fear of persecution in Pakistan.

22. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone Pakistan had harmed or threatened to harm the applicant. Accordingly, the Tribunal found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicant would suffer significant harm.

23. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of an Urdu interpreter.

2. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 10 March 2016. At that directions hearing, the applicant was provided with an opportunity to file an amended application, any further evidence and submissions in support of his application. The applicant also confirmed that at that directions hearing, he was provided with the contact details of legal service providers and interpreting and translation services in documents headed in his own language.

1. The applicant confirmed that he had not filed any documents either in accordance with those directions or otherwise.

2. The applicant confirmed that he continued to rely on the grounds of his initiating application filed on 11 January 2016. Those grounds are as follows: 

   “1. The Tribunal made procedural error in paragraph 75 in its decision of dated 05 January 2016 while not accepting my genuine evidence to be a truth or a credible witness.

   2. The Tribunal shows unreasonableness in paragraph 76 as I have given detailed and convincing explanation about my conversion from Sunni sect to Shia sect. However, the Tribunal said that I have not given convincing account of my reasons for doing so.

   3. The Tribunal again shows unreasonableness in paragraph 77 while not considering and accepting my explanation about my stay in Pakistan after my brother murder. I have clearly explained about my circumstances in Pakistan after my brother however the Tribunal has not given any weightage to them.

   4. The Tribunal made procedural error in paragraph 86 stating that my evidentiary document i.e. First Information Report from Pakistan is fraudulent, however neither the Department nor the Tribunal has showed any evidentiary proof that this document is fraudulent. If the Department or the Tribunal has any doubt about the document than they have to verify before declaring it as a fraudulent.

   5. The Tribunal erred in paragraph 87 in making decision while considering my claims as inconsistent and implausible in nature. However, the Tribunal has failed to justify where they have found inconsistency or implausibility.

   6. The Tribunal erred in paragraph 88 in making decision by saying that I have provided fraudulent documents without any reasonable inquiry and justification.

   7. The Tribunal erred in paragraph 89 in its decision by saying that “I am therefore not satisfied that he faces a real chance of suffering serious harm amounting to persecution in Egypt within the reasonably foreseeable future for any reason in Convention". This has been a clear mistake by the Tribunal in say that I would have a real chance of suffering serious harm amounting to persecution in Egypt within the reasonably foreseeable future. I have nothing to do anything with Egypt and I have never visited Egypt in my life.

   8. I strongly believe that I am a Refugee according to Convention. I have well-founded fear of being persecuted for Convention related reasons. My fear is subjective and objective and I can support my claim with new evidence.

   9. I strongly submit that I do not agree with the decision of the Tribunal. I strongly believe that if I go back to Pakistan under these circumstances, I will be killed.

   10. I kindly request the Honourable Court to kindly set aside the AAT's decision of dated 5 January 2016.”

   (Errors in original)

3. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

Ground 1, 2, 3 and 5

1. The first respondent grouped grounds 1, 2, 3 and 5 together, as a contention that the Tribunal’s adverse credibility findings were not open to it. The applicant agreed that was his common complaint in respect of those grounds.

2. I earlier explained to the applicant that the role of this Court was very different to that of the Tribunal and it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.

3. Upon the applicant agreeing that his complaints in grounds 1, 2, 3 and 5 related to adverse credibility findings, I explained to the applicant that if it be the fact that those findings were open to the Tribunal on the evidence and material before it for the reasons it gave, then even if those findings are incorrect, that is not sufficient to demonstrate jurisdictional error on the part of the Tribunal. 

4. A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified the relevant law which should be applied to its findings and conclusions. The Tribunal summarised the applicant’s protection claims and summarised the Delegate’s decision and the applicant’s submission provided in support of his review application.

5. The Tribunal then summarised the evidence provided by the applicant at the hearing which he attended on 2 December 2015. The Tribunal noted various matters that it put to the applicant about his evidence and noted the Tribunal’s concerns relating to those exchanges. The Tribunal provided a detailed summary of the various exchanges it had with the applicant in exploring his claims.

6. The Tribunal also noted the post-hearing submission, received on 15 December 2015, from the applicant’s advisor. In particular, the Tribunal noted matters referred to by the applicant’s advisor in that submission that the applicant was unable to understand questions put to him at the hearing and was therefore confused and could not clarify issues which were raised.

7. The Tribunal then referred to particular matters raised in that submission. The Tribunal accepted that the applicant may have been confused on occasions and stated that the Tribunal had taken that into account when assessing his claims. The Tribunal also noted that the applicant was frequently asked to confirm that the Tribunal’s understanding of his claims was correct. The Tribunal did not accept that the applicant’s understanding of questions put to him by the Tribunal was so poor that he was unable to explain his situation. The Tribunal also noted that the applicant was represented by a lawyer who attended the hearing and assisted him to prepare the post-hearing submission, addressing those issues.

8. The Tribunal found that the applicant had ample opportunity to provide his claims and explain his situation. Ultimately, the Tribunal comprehensively rejected the applicant’s claims and found him not to be a truthful or credible witness. The Tribunal found various claims made by the applicant to be “unconvincing”, “contradictory”, “implausible”, “inconsistent” and “fabricated”. The Tribunal identified its concerns in respect of the applicant’s claims in reaching those conclusions. The Tribunal found the applicant had not provided honest evidence regarding his circumstances in Pakistan.

9. However, The Tribunal noted that the applicant appeared to be genuinely confused about some of the questions put to him in relation to the 2014 FIR and noted that it would not have rejected his claims on that basis alone. However, the Tribunal noted that was not the only problem with the applicant’s evidence in relation to the 2014 FIR and, ultimately, found that the document expressed to be a First Information Report, lodged in February 2014, to be fraudulent. 

10. Ultimately, the Tribunal found that the applicant had concocted his claims and provided fraudulent documents to support those claims. Accordingly, the Tribunal found that the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) leading the Tribunal to affirm the decision under review.

11. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

12. Essentially, the applicant’s complaints, as reflected in grounds 1, 2, 3 and 5, do no more than express a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this court can not undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

13. Accordingly, none of grounds 1, 2, 3 and 5 are made out.

Grounds 4 and 6

1. Grounds 4 and 6 take issue with the Tribunal’s findings that the documents provided by the applicant in support of his application were not genuine. However, the Tribunal made clear that its conclusions in relation to those documents were based on the applicant’s inconsistent evidence as to the provenance of the document in relation to the 2014 FIR, and the applicant’s apparent lack of knowledge about the contents of that document. In relation to the Tribunal’s findings in respect of an affidavit of a person and a death certificate, the Tribunal repeated its finding that the applicant had fabricated his claims and found that the document was a simple document that could easily have been fraudulently manufactured.

2. It is well established that the Tribunal is entitled first to make an assessment of the applicant’s credit and then give attention to the corroborative evidence. It is well established that where a party’s credibility has been so weakened, corroborative evidence may be found to be of no weight “because the well has been poisoned beyond redemption” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ).

3. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ stated:

   “It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

   …

   [49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”

4. The case before this Court is such a case and the Tribunal’s clear and comprehensive adverse credibility findings are such that it was open to the Tribunal to find the applicant’s documents not to be genuine for the reasons it gave, and accordingly place no weight upon them.

5. Accordingly, grounds 4 and 6 are not made out. 

Ground 7

1. Ground 7 asserts that the Tribunal committed jurisdictional error by referring incorrectly to the applicant’s country of origin being Egypt rather than Pakistan. That error was contained in the following paragraph:

   “89. There is no credible evidence before me which suggests that the applicant faces serious harm in Pakistan for any of the reasons in the Refugees Convention. I am therefore not satisfied that he faces a real chance of suffering serious harm amounting to persecution in Egypt within the reasonably foreseeable future for any reason in the Convention.”

   (Emphasis added)

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal Member well understood that the applicant’s claims related to Pakistan and that his claimed fear of harm related solely to Pakistan. There is only one incorrect reference to Egypt in the decision record of   94 paragraphs, being the reference quoted above. In the circumstances, I am satisfied that the reference to Egypt in the paragraph quoted above was nothing more than a typographical error and does not demonstrate any jurisdictional error on the part of the Tribunal.

3. Even if it was not a typographical error, and arose from the Tribunal’s use of a template, it is well established that the court should give the Tribunal decision a beneficial construction and not approach the Tribunal’s decision with an eye keenly focused to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ at [30] – [31]; Cervantes v Minister for Immigration and Citizenship [2012] HCATrans 123 (21 May 2012) per Heydon J; SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014) per Siopis, Perram and Davies JJ at [13]).

4. In making this finding I have regard to the caution a Court should exercise in “filling the gaps” (see Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95; [2000] FCA 1830 per Finkelstein J at [48]).

5. In the circumstances, Ground 7 does not establish jurisdictional error.

Grounds 8, 9 and 10

1. Grounds 8, 9 and 10 make bare assertions that do not by themselves identify any jurisdictional error on the part of the Tribunal that has not otherwise been considered in other grounds identified by the applicant.  A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and considered all material provided in support, including both pre and post-hearing submissions received by the applicant’s advisor.

2. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal then made findings based on the evidence of the material before it, which were open to it for the reasons it gave. The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings it made and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. 

4. Accordingly, pursuant to s.474 of the Act, this court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 November 2017