ADG16 v Minister for Immigration
[2018] FCCA 598
•15 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADG16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 598 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – application made by the second applicant dismissed for non-appearance pursuant to r.13.03C(1)(c) of the FCC Rules – whether the first applicant was afforded procedural fairness – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal made a finding unsupported by the evidence – no jurisdictional error – application made by the first applicant dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424AA, 424A, 476 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship[2007] HCA 26; (2007) 81 ALJR 1190 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 | ||
| First Applicant: | ADG16 | |
| Second Applicant: | ADH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 93 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 February 2018 |
| Date of Last Submission: | 15 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2018 |
REPRESENTATION
| Applicants: | First applicant in person, no appearance by the second applicant |
| Solicitors for the Respondents: | Ms N Johnson of Mills Oakley Lawyers |
ORDERS
The application made on 17 January 2016, by the second applicant, is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The application made on 17 January 2016, by the first applicant, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 93 of 2016
| ADG16 |
First Applicant
| ADH16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore; Revised from Transcript)
I have before me today an application made on 17 January 2016 pursuant to s.476 of the Migration Act 1958 (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 January 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
At the time of their application to the Court, the applicants were husband and wife (CB 1). They are both citizens of the People’s Republic of China (CB 13 and CB 28).
They arrived in Australia on 20 December 2012 on student visas (CB 14, CB 73 to CB 91 and CB 127.8). The applicants applied for protection visas in February 2014 (CB 1 to CB 41). They were assisted by a registered migration agent. In essence, the first applicant’s claims were that he feared harm in China from the Chinese authorities and money lenders. The first applicant claimed to have had his property forcibly acquired by the authorities and that he was paid inadequate compensation (see CB 20 to CB 21).
The second applicant applied as a member of the first applicant’s family unit. The first applicant was interviewed by the delegate who, it must be said, provided a comprehensive record of the interview in his decision record. On 30 October 2014 the Minister’s delegate refused the grant of the protection visas (CB 121 to CB 137).
The delegate found that the first applicant’s evidence was not credible and that his claims were a “fabrication” (CB 133.7 and CB 134.6). The application for the protection visas was essentially refused on that basis.
The applicants applied for review to the Tribunal on 10 November 2014 (CB 138 to CB 140). They continued to be represented by a registered migration agent (CB 139). I note that they provided a copy of the delegate’s decision record to the Tribunal at the time of making that application (CB 140.1).
The applicants were invited to attend a hearing before the Tribunal scheduled for 5 January 2016 (CB 145 to CB 149). From the evidence that is before the Court, the first applicant appeared and gave evidence. The second applicant is noted as being in attendance, as was the applicants’ representative (CB 153 to CB 156).
The Minister’s submissions filed in this matter set out what, in my view, is a comprehensive summary of the Tribunal’s decision. In light of the evidence before the Court, I find that summary to be a fair representation of the Tribunal’s reasoning and findings. For the sake of convenience today, I adopt the summary that is set out at [15] – [24] for the purposes of this judgment (references to “the applicant” should be read as references to the first applicant):
“[15] On 13 January 2016, the Tribunal made a decision affirming the delegate’s decision (CB 161-175). The Tribunal summarised the applicant’s written claims (CB 162, [4]-[5]) and the delegate’s decision (CB 163-166, [13]-[14]), which included the delegate’s reliance on information and documents from the applicant's Student visa application (CB 166, [15]-[16]). The Tribunal also summarised the applicant-s oral evidence at the hearing, which included putting its concerns to the applicant pursuant to s 424AA (CB 166-167, [17]-[21]).
[16] The Tribunal found the applicant was not a credible witness and had not told the truth about what happened to him in China. It also found that his claims for protection were fabricated (CB 168, [26]), and cited a number of reasons to support its findings. For example, the Tribunal found the applicant gave inconsistent evidence to the Tribunal and in his Student visa application about his last place of residence in China
(CB 168-169, [28]). It found his ‘inconsistent and shifting evidence about where he lived before he left China’ cast doubt on the credibility of a core element of his protection claims. It also found his indication in his Student visa application signed on [8] November 2012 that his residential address was ‘no. 658 property’ undermined his claims that the property was demolished in 2010 and thereafter he and his wife lived with his parents (CB 169, [31]).
[17] The Tribunal also found the applicant gave inconsistent evidence to the delegate and to the Tribunal about his claimed second detention in China. He told the delegate he was released after seven or eight days and his parents paid 200 yuan for each day he was detained but his evidence to the Tribunal was that he was held for two weeks or half a month and his parents paid thousands of RMB for his release (CB 169-170, [32]).
[18] The Tribunal also found other aspects of the applicant’s evidence about his claimed detention in China were ‘vague and lacked consistency over time’. For example, he initially told the Tribunal he was detained ‘roughly in January or February 2010 before stating it was 2011. He also made written claims that he was tortured and threatened whilst in detention but told the delegate that he was not tortured (CB 170, [33]). He also told the Tribunal that he was tortured but later said he was not physically mistreated but lost his freedom and this could be torture (CB 170, [34]).
[19] In addition, the Tribunal found the applicant provided information about his life in China in his Student visa application and during the course of applying for protection that was very different. He confirmed with the Tribunal that the information in both visa applications was true but later told the Tribunal that all of the information in his Student visa application was false and had been prepared by a migration agent (CB 170, [35]-[36]).
[20] In particular, the Tribunal found the applicant gave different information about whether he had studied at university, his financial circumstances, whether he and his wife owned other property and his past employment. At the Tribunal hearing, the applicant's evidence was he had not attended university but his Student visa application indicated that he had attended Beijing University and studied business management (CB 170, [36]). The Tribunal also noted the applicant denied having savings in three bank accounts despite his Student visa indicating he had three bank accounts with savings totalling 740,000.00 RMB (CB 170-171, [37]). Although the applicant told the Tribunal that he and his wife did not have any properties in their name and the information in his Student visa application was prepared by a migration agent and was false, the applicant had not told the delegate that the documents were false when the delegate confronted him with information that indicated the applicant's name was on the title deeds to two properties in China. Instead, the applicant told the delegate that his wife bought property held in both their names and he did not know about it or how much money she had. Further, the applicant's evidence that he did not own property was found to be inconsistent with his evidence to the Tribunal that he owned the property he was living in before he left China (CB 171, [38]). Information in the applicant’s Student visa application about his employment that he worked Qingdao Beishan[xue] Stone Co Ltd as an assistant general manager
(CB 80-81) was also inconsistent with information in his PVA (see: CB 17) that indicated he was a farmer. As the applicant had provided different information about his situation in China at different points in time and he knew that some of the information he had provided in the past was false, the Tribunal found it difficult to know what information presented by the applicant could be relied upon (CB 171, [40]). It found it ‘particularly troubling’ that the applicant did not tell the delegate that the information in his Student visa application was false and found his evidence indicated that he was prepared to provide information that he knew was untrue to obtain a favourable immigration outcome (CB 171, [41]).
[21] The Tribunal found further that the applicant’s evidence about his experiences in China lacked persuasive or corroborative detail, specifically: the nature of the work he performed prior to leaving China (CB 171-172, [42]); how he complained to higher levels of government (CB 172, [43]); and the lack of documentation about the agreement to demolish the property (CB 172, [44]). It found his reasons for not having any corroborative documents was ‘unpersuasive’ and the reason that there was no such evidence was because the alleged events never occurred (CB 172, [45]).
[22] The Tribunal also found the applicant’s evidence about having outstanding debts in China was ‘unconvincing’ and was undermined by his statement to the delegate (noted at CB 134.5) that his 100,000RMB debt was not a big problem (CB 172, [47]). Given its other credibility concerns, the Tribunal did not accept the applicant had an outstanding debt to money lenders or faced any harm on this basis (CB 172-173, [46]-[48]).
[23] In addition, the Tribunal found the applicant's long delay (13 months) in applying for protection on 6 February 2014 after arriving in Australia on 12 December 2012, undermined his claimed subjective fear of harm in China. It found its view that the applicant was prepared to change his evidence to obtain a favourable immigration outcome was reinforced by the fact that he provided different explanations to the delegate and the Tribunal about his delay in applying for protection (CB 173, [49]-[52]).
[24] For these reasons, the Tribunal comprehensively rejected all of the claims the applicant had advanced to support his application for a Protection visa (CB 174, [53]-[55]). Whilst it accepted he might owe 250,000RMB to a relative in China, it did not accept he would be unable to repay this amount or that it would result in a real chance of harm if he had difficulty repaying his relative (CB 174, [54]). The Tribunal concluded that the applicant’s claims were not credible and he was a not a truthful witness (CB 174, [53], [56]). As it did not accept any of the applicant’s key claims were true, it was not satisfied the applicants met either the refugee or complementary protection criterion for the grant of Protection visas and affirmed the delegate’s decision (CB 175, [56], [57]).”
Given the grounds of the applicant to the Court, I note in particular that the Tribunal had significant concerns with the first applicant’s evidence and claims as to what had occurred in China. It found further that the long delay (about 13 months) in applying for a protection visa after arriving in Australia undermined the first applicant’s claimed fear of harm in China. Ultimately, the Tribunal comprehensively rejected the first applicant’s factual account, and claims of what he said had occurred in the past in China.
The applicants applied to the Court for judicial review on 17 January 2016. Since that time, various orders were made by a Registrar of the Court for the progress of this case. These orders included the opportunity for the applicants to file any amended application, any evidence by way of affidavit and written submissions. To date, nothing has been filed by the applicants other than the original application to the Court.
When the matter was called today, the first applicant appeared, albeit late. There was no appearance by the second applicant. The first applicant explained that the second applicant had left Australia. He further confirmed that he was not attending the hearing on her behalf, he was only there to speak on his own behalf.
I am satisfied, given that notification of the hearing today was sent to both parties at their address for service, that reasonable steps were taken to notify the second applicant of the Court hearing today. The first applicant has filed no evidence to explain the non-attendance of the second applicant at Court today, nor has the second applicant made any application to the Court for an adjournment of her part of the application.
In the circumstances, it is appropriate that the application made by the second applicant to the Court be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“The FCC Rules”).
The application made by the first applicant remains. As noted above, the first applicant did appear before the Court at the final hearing, and was assisted by an interpreter in the Mandarin language.
I note the three grounds of the application to the Court. The first applicant had attended the final hearing without a copy of his application. He told the Court that he could not remember what was in his application. A copy of his application was provided to him, and each ground was separately translated for him to assist him to refresh his memory. The applicant was then asked to make submissions in respect of each ground separately. I will address what the applicant said as I go through each of the grounds.
The three grounds of the application are as follows:
“1.The Tribunal failed to provide procedure fairness – namely the applicant’s evidence at the tribunal hearing was internally inconsistent. In the course of hearing, the applicant did not fully understand for what questions the Tribunal has asked.
2. The Tribunal took into account into an irrelevant matter, namely speculation of the information provided in student visa application. In order to escape from China, the applicant has asked an agent to prepare the documents by way of paying money. The applicant was not aware of what the documents were provided for the purpose of student visa when he was in China.
3. The Tribunal made a finding without supporting evidence – namely the applicant is prepared to provide information he knows is untrue in the hope of obtaining a favourable immigration outcome. The applicant did not know what actual documents were provided to the department when his student visa application was prepared and lodged by an agent.”
[Errors in original.]
Ground one appears to complain about the hearing before the Tribunal. The ground asserts a failure of procedural fairness because it is said that the “applicant” (in context, references to the “applicant” appear to be references to the first applicant), “did not fully understand” the Tribunal’s questions. In this context, the first applicant’s answers led to the adverse finding that his evidence was “internally inconsistent”.
The first applicant told the Court today that the grounds of his application were prepared by a lawyer. I should note that even if that is the case, the grounds in the application are not clear. In these circumstances, the first applicant’s ground one may possibly seek to complain that the Tribunal failed to put these inconsistencies to him, and provide him with an opportunity to explain them.
As I said earlier, despite the opportunity to do so, the first applicant has provided no evidence to support these allegations. For example, there is no transcript of the Tribunal hearing put in evidence before the Court. The only relevant evidence of what occurred at the hearing are the references that the Tribunal made to the hearing in its decision record. Given what appears to be the complaint in ground one, it is of relevance to note that the hearing was conducted with the assistance of an interpreter in the Mandarin language. It appears that the applicants’ representative was also present.
There is nothing in the evidence before the Court to indicate that the first applicant could not understand the Tribunal’s questions, or that he had any difficulty with the interpretation. There is nothing to show that the applicant or, for that matter, his representative, raised any such concerns at the hearing, or subsequently, with the Tribunal.
Before the Court, the first applicant said that he had “nothing to say” in relation to ground one. On the basis of the evidence that is before the Court, the first applicant’s complaint in ground one fails at the factual level.
If ground one also seeks to assert a failure of procedural fairness because the Tribunal did not put “internal inconsistences” to the first applicant for comment, then I agree with the Minister’s submission that any such allegation must fail in light of the evidence that is before the Court.
The complaint in ground one, as best as it can be understood, is that the Tribunal did not put “internal inconsistencies” in the first applicant’s evidence to the first applicant. I should note that there are no particulars to ground one, so what, if any, of the “internal inconsistencies” were meant to be caught by ground one remains unexplained.
The Tribunal’s procedural fairness obligations are set out in Division 4 of Part 7 of the Act. Relevant to the complaint made in ground one and in light of the evidence, I note that the Tribunal is obliged, pursuant to s.424A(1) of the Act, to put to an applicant for comment or response, “information” that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.
As the Minister correctly submits, inconsistencies in the first applicant’s evidence, and, for that matter, gaps, defects and lack of detail or specificity in the evidence, are not information for the purposes of s.424A of the Act. Nor are the Tribunal’s conclusions following its evaluation of the evidence, “information” for the purposes of s. 424A of the Act (SZBYR v Minister for Immigration and Citizenship[2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”)).
On the basis that ground one appears to complain about “internal inconsistencies”, the Tribunal’s obligations pursuant to s.424A(1) of the Act were not engaged in relation to these inconsistencies.
Further, and as the Minister correctly submits, “information” for the purpose of s.424A(1) of the Act must contain, in its terms, a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations. The “internal inconsistencies” to which ground one appears to refer do not enliven this obligation (SZBYR at [17]).
In its decision record, the Tribunal clearly made reference to s.424AA of the Act (see [21] at CB 167, [30] at CB 169 and [39] at CB 171 and see also [30] of the Minister’s written submissions).
Section 424AA of the Act is a mechanism by which the Tribunal can discharge orally at the hearing, any obligation that may arise pursuant to s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)).
It appears that the Tribunal utilised s.424AA of the Act to comply with what it perceived to be its obligations under s.424A(1) of the Act. The Tribunal’s references at [30] (at CB 169) and [39] (at CB 171) related to inconsistencies between matters contained in the applicant’s student visa application that he used to come to Australia, and what he otherwise put to the Tribunal.
As mentioned earlier, the inconsistencies in the first applicant’s evidence before the Tribunal, of themselves, were not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]). But in any event, to the extent that the Tribunal appeared to utilise s.424AA of the Act, perhaps because it was of the view that, in part, the inconsistencies arose from what the first applicant had put in his student visa application, on the evidence, the first applicant was given the opportunity to comment on these issues at the hearing before the Tribunal.
There is no legal error in the Tribunal purporting to utilise s.424AA of the Act, even though the obligation in s.424A(1) of the Act was not enlivened (SZMCD).
Further, as the Minister submits, the inconsistencies arising from, in part, the first applicant’s student visa application, were also derived from what was set out by the delegate in his comprehensive decision record. That decision record was given by the applicants to the Tribunal for the purposes of the review by the Tribunal. Therefore, any information in the decision record which may have been caught by s.424A(1) of the Act was excluded by operation of s.424A(3)(b) of the Act (SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 and Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241). In all, no jurisdictional error arises from ground one.
Ground two asserts that the Tribunal took into account an “irrelevant matter”. The ground then asserts that the “irrelevant matter” was “speculation” in relation to the information the first applicant provided in his student visa application (again, in context the reference to “applicant” in ground two is to the first applicant). The ground complains that the first applicant was “not aware” of what was in that student visa application, as it had been prepared by an agent.
I note that specifically in relation to that latter complaint, the first applicant’s explanation to the Tribunal that the information in the student visa application was “false”, was part of what the first applicant told the Tribunal when the Tribunal put its concerns to him. I note that the Tribunal’s findings in relation to the student visa material were all reasonably open to it on what was before it. In particular, the findings were probative of the evidence before it.
Before the Court, the first applicant initially said that his purpose in escaping China was to avoid persecution by the Chinese government. He sought assistance from an agent who then prepared the student visa application. This account is similar, and in essence identical, to what the first applicant told the Tribunal.
The first applicant subsequently also told the Court that what had happened in China was the “truth”. He further appeared to say that he “knew” that what was in the student visa application was “false”, but that he had been told by the agent it was necessary in order for him to be able to obtain the student visa.
It is important to note that the Tribunal’s task was to review the decision of the delegate. The delegate had identified inconsistencies in the first applicant’s evidence and claims, including the inconsistencies with what had been otherwise put in his student visa application. As noted above, the delegate also, in part, relied on these inconsistencies to find adversely to the first applicant’s credit.
Although no particulars have been provided by the first applicant to the Court, I note that from the evidence, these inconsistencies concerned the first applicant’s circumstances in China, including whether he had studied at university, his financial circumstances, his past employment, and whether his wife owned property.
These were all matters that were relevant to the first applicant’s claims to protection. The Tribunal did not engage in “speculation” as ground two asserts. It is trite to say that it is a part of the Tribunal’s task in conducting the review to evaluate all of the claims and evidence before it, in the context in which it is presented. All of the matters in respect of which the Tribunal found inconsistency, or relied on in making its finding of inconsistency, were relevant to that evaluation.
Further, before the Court, the first applicant has not identified any part of the Tribunal’s evaluation or consideration which could be said to have been “irrelevant” in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
Importantly, as noted above, the Tribunal put its concerns to the first applicant at the hearing. It expressly considered his explanation that he did not know what his agent had done, and that the documents in the student visa application were “false”. The Tribunal did not accept the first applicant’s explanation. It gave cogent and intelligible reasons for this.
The Tribunal’s findings were all reasonably open to it on what was before it. They were also probative of the material before it.
In any event, the Tribunal also reasoned that even if the information in the student visa application was “false”, this did not necessarily mean that what the first applicant had put in his protection visa application was true. This was also reasonably, and it must be said, logically, open to the Tribunal. It was reasonably open to the Tribunal to find that even if the student visa information was not “false”, this still did not overcome its other, and it must be said, numerous concerns about the applicant’s claims and evidence.
Ultimately, and as the Minister in my view correctly submits, it is for the Tribunal to identify the material it finds relevant to its reasoning, to evaluate the material and give such weight to that material as, with reasons, it sees fit (Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5] and see the [35] of the Minister’s written submissions). In all, there is no jurisdictional error arising from ground two.
Ground three asserts that the Tribunal made its decision “without supporting evidence”. Again, as best as this can be understood, it appears that this is a reference to the Tribunal’s finding that the first applicant was prepared to provide information he knew not to be true to achieve a favourable immigration outcome ([41] at CB 171 and [50] at CB 173). The ground repeats that the [first] applicant “did not know” what was provided in support of his student visa application.
Before the Court, and as mentioned earlier in relation to the first applicant’s submissions in ground two, the first applicant appeared to assert that he “knew” the information that had been provided in the student visa application was false, but that he had been told that this was necessary such as to obtain the visa.
In any event, the ground appears to direct attention to [41] (at CB 171) and [50] (at CB 173) of the Tribunal’s decision record. Those paragraphs are as follows:
“[41] I find it particularly troubling that [the first applicant] did not tell he delegate that the information in his student visa application – for example, information about his university attendance and property ownership in China – was false. When I put to [the first applicant] that he did not tell the delegate that information in his student visa was all false when the delegate asked him about it, [the first applicant] said his migration agent who helped him apply for a visa to come to Australia told him to say everything was true and he was afraid if he didn’t do this it would affect his situation in China. In my view, [the first applicant’s] evidence indicates he is prepared to provide information he knows is untrue in the hope of obtaining a favourable immigration outcome.
…
[50] I have formed the view that [the first applicant] is someone who is prepared to change his evidence in the hope of obtaining a favourable immigration outcome. This view is reinforced by the fact that he provided different explanations to the Department and the Tribunal about his delay in applying [for] protection. As noted above, I do not find the explanation [the first applicant] provided to the delegate about his delay in applying for protection to be persuasive. When I asked [the first applicant] about his delay in applying for protection, he said he was not aware he could apply for a protection visa and when he found out he was able to do so he did; when he found a solicitor he made an inquiry. Asked to comment on why he provided a different explanation to the delegate, [the first applicant] reiterated that at that time he did not know that a protection visa existed and he really liked Australia.”
What the first applicant’s ground three appears to overlook is that the point that the Tribunal was making in those parts of its decision record, was that even if the first applicant did not “know” the information he provided in his student visa application was “false”, he later had had an opportunity to tell the truth when the delegate had put to him what was in that student visa application.
Instead, on the first applicant’s own evidence, he maintained that the information in his student visa application was genuine before the delegate because, as he told the Tribunal, his migration agent told him to say it was true. In essence, this was an important part of the basis of the Tribunal’s finding that the first applicant was prepared to provide information he knew was untrue and to maintain that position before the delegate.
The first applicant’s ground three also asserts that the Tribunal made its finding “without supporting evidence”. There are a number of answers to this.
First, there was evidence to support the Tribunal’s finding that the first applicant was prepared to provide information he knew was untrue, that is, the first applicant’s own evidence to the Tribunal. The fact that the Tribunal disbelieved his evidence does not mean that there was no evidence to support, or to form a probative basis, for the Tribunal’s ultimate conclusion.
Second, it is not for the Tribunal to find evidence to disprove an applicant’s claims. It is for the applicant to provide his evidence and arguments such as to enable the Tribunal to reach the requisite level of satisfaction such that the protection visa must be granted. Section 65 of the Act makes that clear (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] - [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] - [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179).
Third, as I have already said, the Tribunal’s findings, including its findings on the first applicant’s credibility, were all reasonably open to it on what had been put before it. The Tribunal’s ultimate conclusion on the first applicant’s lack of credibility was based on a number of antecedent findings which were all reasonably open to it and for which the Tribunal gave intelligible and cogent reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1226; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 (“CQG15”)).
It would appear that the first applicant’s view, as expressed through ground three, is that the Tribunal should have uncritically accepted that he was telling the truth. There is no obligation on the Tribunal to do that. The obligation on the Tribunal is to properly evaluate the evidence before it (Randhawa v Minister for Immigration, Local Government& Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265).
The Tribunal’s finding as to the first applicant’s lack of credibility does not, as the Minister correctly submits, expose any potential basis of legal challenge on well-established legal precedent (CQG15 at
[37] – [38] and see [37] of the Minister’s written submissions).
In reality, the first applicant’s complaint now, in the circumstances presented to the Court, is no more than disagreement with the Tribunal’s findings. That is, the first applicant has come to this Court asking the Court to substitute its own findings for those of the Tribunal. As I explained to the first applicant today, the law does not permit the Court to do that. The Court cannot engage in the review of the merits of an applicant’s claims to protection to change findings made by the Tribunal in relation to those merits. In all, therefore, ground three does not reveal any jurisdictional error.
Conclusion
Nothing that the first applicant told the Court today adds to the case that he has sought to put before the Court by way of the grounds of his application. There is no jurisdictional error evident in the Tribunal’s decision record as it is said to arise by the grounds of the application. It is appropriate that the application to the Court in relation to the first applicant also be dismissed. I will make the appropriate orders.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 March 2018
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