Aid16 v Minister for Immigration

[2017] FCCA 253

FEDERAL CIRCUIT COURT OF AUSTRALIA

AID16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 253

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal accorded the applicants procedural fairness – whether the Administrative Appeals Tribunal considered all the evidence before it – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal considered the claims in accordance with the 1951 Convention relating to the Status of Refugees – whether the Administrative Appeals Tribunal considered all the claims made by the applicants – whether the Administrative Appeals Tribunal erred in failing to request more information from the applicants – whether the Administrative Appeals Tribunal considered the evidence of the applicants and the witnesses – whether the documents disclosed under a s.438 certificate resulted in any unfairness to the applicants where those documents were provided to the applicants pursuant to request under the Freedom of Information Act1982 (Cth) – no jurisdictional – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 438, 474,
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

First Applicant: AID16

Second Applicant: AIE16

Third Applicant: AIF16

Fourth Applicant: AIG16

Fifth Applicant: AIH16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 321 of 2016

Judgment of: Judge Emmett

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Sydney

Delivered on: 16 February 2017

REPRESENTATION

The Applicants appeared in person with the assistance of a Fijian interpreter.

Counsel for the Respondents: Tim Reilly

Solicitors for the Respondents: Australian Government Solicitors

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 321 of 2016

AID16

First Applicant

AIE16

Second Applicant

AIF16

Third Applicant

AIG16

Fourth Applicant

AIH16

Fifth 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.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 20 January 2016 (“the Tribunal”).

2. 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. The First Applicant is a citizen of Fiji, who last arrived in Australia on 13 October 2004 on a Short Stay Business visa (“the Applicant”). The Second, Third, Fourth and Fifth Applicants are members of the Applicant’s family. At the hearing before the Tribunal, the Second and Third Applicants raised claims of their own.

2. Historically, the Applicant was listed as a dependent on a previous protection visa application lodged by the Second Applicant who is his wife. The Third Applicant was also a dependent in that application.

3. The Fourth and Fifth Applicants are the two younger children of the Applicant. The Fourth and Fifth Applicants have previously made separate applications for protection on 30 July 2008 and which were refused by a delegate of the First Respondent. The delegate’s decision was confirmed on review by the then Refugee Review Tribunal.

4. On 5 December 2012, the Applicant lodged another protection visa with the Department of Immigration and Citizenship (“the Department”).

5. On 1 September 2014, the Delegate refused the Applicant’s application for a protection visa.

6. On 9 September 2014, an application for review of the Delegate’s decision from the Applicant was received by the Tribunal.

7. The Tribunal held hearings on 22 October 2015 and 7 January 2016.

8. On 20 January 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

9. On 15 February 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 actively supports the Soqosoqo Duavata ni Lewenivanua (“SDL”) political party when he was in Fiji. He left Fiji in 2004 because he felt a military coup was imminent.

   b)He continued to support the SDL when he arrived in Australia by forming the Griffith branch of the SDL. He is also a founding member of the Fijian Democracy Freedom Movement (“the FDFM”)

   c)He made various media statements condemning the military coup and attended demonstrations and protests against the military regime.

   d)When he was in Fiji, he saw the mutilated bodies of soldiers in a freezer container. He also witnessed the torture of one of his colleagues. He was ordered to stay down at gunpoint when he was in charge of a logistic team that supported the military.

   e)He will be tortured and killed in Fiji because of his continuing support for the SDL.

The Delegate’s decision

1. On 30 June 2014, the Applicant attended an interview with the Delegate.

2. The Delegate accepted that the Applicant is considered to be a community leader for the Fijian people in Griffith. The Delegate further accepted that the Applicant had made negative comments about the military regime in the media. The Delegate accepted that the Applicant is a member of the SDL party and the FDFM.

3. However, the Delegate found that the Applicant had overstated his role in the FDFM and the SDL party. The Delegate also found that the Applicant had overstated the degree of his political activities in Australia. The Delegate found that the applicant would not be harmed in Fiji due to his political involvement.

4. Accordingly, on 1 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 13 May 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 6 August 2015 to give oral evidence and present arguments. That hearing was subsequently postponed to 22 October 2015.

2. On 21 October 2015, the Applicant made a Statutory Declaration in which he further elaborated his political activities in Australia and stated that he was warned by a close relative that he will be taken to a camp if he returns to Fiji because of his public political involvement in Australia.

3. The second applicant claimed that she would face harm due to her known presence at an anti-Bainimarama demonstration in Australia and her association with the Applicant.

4. The Applicant also stated that his role in Australia would be noticed by Bainimarama or the military in Fiji.

5. On 22 October 2015, the Applicant, the Second and Third Applicants attended the Tribunal hearing and gave evidence. The Tribunal also received oral evidence from two witnesses.

6. At the hearing on 22 October 2015, the Third Applicant asserted that he feared harm because of his attendance at political protests in Australia.

7. After the Tribunal hearing, the applicants’ migration agent advanced a further claim that the Applicant would be harmed in Fiji due to his association with an alleged secessionist, Ms K.

8. On 4 November 2015, the Applicant made a further Statutory Declaration in which he described his association with Ms K.  

9. On 3 December 2015, the Tribunal invited the applicants to attend a further hearing on 7 January 2016 to give oral evidence and present arguments in relation to this new claim.

10. All applicants were present at the second hearing, but only the Applicant gave evidence. The Tribunal also heard evidence from the Applicant’s witness, Ms K at the second Tribunal hearing.

11. The applicants were represented by their registered migration agent at both hearings.

12. In a post-hearing submission, the Second, Third, Fourth and Fifth Applicants claimed to face harm due to their association with the Applicant.

13. The Tribunal found the Applicant and the Third Applicant had not made their own claims when listed as dependents on the Second Applicant’s protection visa application in 2004. Therefore, their claims could be considered under both the Convention criterion and the complementary protection criterion.

14. The Tribunal found that the Second, Fourth and Fifth applicants had made their own protection visa applications before 2012; and were therefore only able to have their claims for complementary protection considered (see SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235).

15. The Tribunal identified with specificity the documents provided to it in support of the applicants’ claims, including Statutory Declarations by witnesses, submissions and various newspaper and internet reports.

16. The Tribunal identified and considered in some detail the country information to which it had regard.

17. The Tribunal summarised various exchanges it had with the Applicant and the Second Applicant about their claims and also summarised evidence given by their witnesses.

18. The Tribunal also summarised post-hearing submissions received from the applicants’ adviser, and again identified with specificity country information provided by the applicants’ adviser.

19. The Tribunal noted that the Applicant and the Second Applicant had admitted making false claims as part of the Second Applicant’s 2004 protection visa application. The Tribunal accepted that they did so persuaded by their then migration agent. However, the Tribunal found that it did not excuse the fact that false claims were made to the government and the then Refugee Review Tribunal and that such conduct indicated a degree of opportunism and thereby undermining their credibility.

20. The Tribunal largely accepted the Applicant’s claims of his political activities in Fiji and Griffith. However, due to various inconsistencies between the evidence of the Applicant and the Second Applicant it was not satisfied of the Applicant’s claim that he was warned through a third party that he would be harmed if he returns to Fiji.

21. Otherwise, the Tribunal’s decision record is accurately summarised in the written submissions of counsel for the First Respondent, as follows:

    “24. As mentioned above, the Tribunal was satisfied that the applicant had significant involvement in the FDFM and was the representative of the FDFM in Griffith: CB 573 [52]. The Tribunal accepted the applicant was a ‘mid-ranking political activist with a significant profile in the Griffith area’: CB 574 [57]. It accepted his involvement in setting up the SDL branch in Griffith and being the FDFM representative in the area. It accepted that his activities may be known to the government of Fiji. The Tribunal noted the lack of public criticism in recent years, with his latest media commentary dating back to 2010. The Tribunal accepted that he would be politically active if returned to Fiji: CB 574 [57], notably with the SODELPA: CB 573 [48]. The Tribunal considered that the applicant, in Fiji would be acting as a ‘mid-level political activist’: CB 575 [60].

    25. Because of this, the Tribunal considered that the applicant may well have been known to the regime and would continue to be known to the current government: CB 581 [99]. It therefore considered whether, given that profile, the applicant faced a real chance of serious harm or a real risk of significant harm on return to Fiji: CB 581 [100]. The Tribunal noted the need to consider the current situation in Fiji when determining this.

    26. The Tribunal considered DFAT information against the applicant’s profile as a mid-level operative. Although caution is required for direct criticism of the Prime Minister or Attorney General, DFAT notes that there is now much greater freedom in expressing opposing political views: CB 581 [101]. DFAT considered that those at risk are high profile public figures or senior members of political parties and so the Tribunal considered that the applicant did not fall within this risk profile: CB 582 [102].

    27. The Tribunal considered other country information, from DIBP and information provided by the applicant’s representative and witnesses: CB 582 [103-107]. It noted the applicant’s argument that he has been associated with higher level and higher profile individuals. It found however that any such association did not increase the applicant’s risk and took the DFAT assessment at face value: CB 582-583 [108-109].

    28. The Tribunal noted the applicant’s purported association with [Ms K]: CB 583 [110], but said that his lack of involvement in the separatist movement: CB 583 [114], and only generalised support for it was not sufficient to establish a real chance of significant harm: CB 584 [117]. It considered that the relationship with [Ms K] related to church and other community activities: CB 584 [120]. It found that the applicant’s relationship with [Ms K] was not sufficiently close to impute any political opinion: CB 584 [122].

    29. The Tribunal found that the applicant would not face a real chance of serious harm or be at a real risk of significant harm if returned to Fiji because of his association or links with [Ms K]: CB 584 [124], because of his involvement with the FDFM in Australia or in the future in Fiji: CB 585 [126], or because of the of the applicant’s circumstances considered as a whole: CB 585-586 [128-131]. The Tribunal accordingly did not consider that the other applicants would be at such risk by association: CB 586 [131].

    30. The Tribunal was not satisfied that there was a real risk of significant harm to the second applicant because of her participation in protests or because of her association with the applicant: CB 586 [132], [136].

    31. The Tribunal considered that the third applicant would not face a real chance of serious harm or a real risk of significant harm because of his involvement in protests or because of his association with the applicant: CB 586 [133], 587 [137].

    32. The Tribunal considered that there was not a real risk of significant harm to the fourth and fifth applicants because of their association with the applicant: CB 586 [134], 587 [138].”

The proceeding before this Court

1. The Applicant was unrepresented before this Court this morning, although had the assistance of a Fijian interpreter, and confirmed to the Court that he was appearing on behalf of all applicants.

2. On 31 March 2016, the Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon and directed to file and serve any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for hearing today.

3. At the outset of the hearing, I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that 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 to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal 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.

4. At the commencement of today’s hearing, the Applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

5. The Applicant sought an adjournment of today’s hearing in order to obtain further legal advice. That application was opposed by the First Respondent. On 2 May 2016, a Notice of Address for Service was filed by City of Sydney Lawyers, however, no further documents were filed by them on behalf of the applicants until the Notice of Intention to Withdraw filed on 6 February 2017. The Applicant showed to the Court a copy of a letter he received from City of Sydney Lawyers and earlier correspondence, which were requests by City of Sydney Lawyer to the Applicant for instructions as to the conduct of the applicants’ case. The last letter, dated 6 February 2017, informed the Applicant that in circumstances where no instructions had been received and no payment had been received, City of Sydney Lawyers intend to file a Notice of Intention to Withdraw.

6. I asked the Applicant if he had made any attempts to contact another lawyer and he replied that he had not. I note that at the directions hearing before a Registrar of this Court attended by the Applicant on 31 March 2016, the Applicant was provided with the contact details of legal services providers. In separate reasons, the adjournment application was refused by me in circumstances where the Applicant had made no attempt either to reconnect with City of Sydney Lawyers or to make enquiries to obtain other legal representation.

7. The Applicant confirmed that he relied on the grounds contained in his initiating application filed on 15 February 2016 as follows:

   “1. The Tribunal failed to accord “Procedural Fairness” to the Applicant because of:

   1.1 its failure to carry out its role in an Inquisitorial Manner when it should have considered all of the evidence before it rather than make a contrary finding when it said:

   " ...... .the Tribunal accepts, ........ that he has been involved in setting up a branch of the SDL in Griffith ........ It accepts that his activities may be known to the government in Fiji. It accepts that there is media commentary of him criticising the regime ..... The Tribunal indicated it needed to consider how that .... profile fits in ..... reports ...... that criticism of the government is allowed. This might cause the Tribunal to think that, ......... there is not a real chance of persecution or significant harm” (AAT decision para. 57)

   “The Tribunal referred to .......... the letter of support of the Leader of the Opposition..... The Tribunal noted that the letter claims that Members of Parliament are under attack and youth members are under surveillance. The Tribunal indicated ........ that the reports of harm were limited .... and ......... seems somewhat insubstantial in terms of ... risk to the applicant.” (AAT decision para. 60)

   “The applicant's adviser indicated that claims of harm were not being made on ....... what happened in Fiji prior to the applicant coming to Australia.” (AAT decision para. 41)

   “The Tribunal noted that it can see no reason why .... the claims in 2008 ..........would not have been made as part of the 2004 application ...........the applicant responded ......... he was time barred from making the application. The Tribunal indicated that it had some doubts about this.......... (AAT decision para.43)

   1.1 the weight it gave to the claims of the Applicant in his application for a protection visa despite the Applicant providing an honest explanation of these claims when it said:

   " ......... they had both indicated to the Tribunal at the hearing of ........2008 that the second named applicant's claims were false …it was indicated that they were advised by the migration agent ......... to make those claims." (AAT decision paragraph 42)

   “The Tribunal noted .......... that he and his wife had made admittedly false claims and this could be .......... considered adverse to their credibility." (AAT decision para. 44)

   1.3 the weight it gave to the evidence of witnesses who gave oral testimony as well as to the letters of support, when instead it said:

   " ....... DFAT also indicated that FDFM organisers have not been targeted specifically on their return to Fiji." (AAT decision para. 32)

   “Public commentary on political issues ... .is permitted .... "

   “However, some uncertainty remains about the permissible limits on public commentary ..... "

   ''Overall, DFAT assesses that senior members of opposition political parties ... .in Fiji are at a moderate risk of being monitored ......... (AAT decision para. 33)

   The Applicant submits that the Tribunal erred in not assessing the Applicant's claims in a manner that was required as mandatory under sec.414 of the Migration Act 1958, and this gave rise to jurisdictional error.

   2. The Tribunal acted in a “unreasonable” manner towards the Applicant when dealing with the Applicant's claims because of its failure to consider the claims in accordance with the UN Convention relating to Status of Refugee, due to the following conclusions:-

   2.1 .... the applicant had been warned not to return to Fiji and had been told by .............. his cousin, in military intelligence, ...... that the applicant would be in difficulties if he returned…The second named applicant was not present during the evidence, and the Tribunal asked her separately, ............ .if there had been warnings from Fiji, ...... she said ... a warning conveyed to a friend who was a school mate.”(AAT decision para. 45) ........ “The Tribunal acknowledged reports of harm to opponents of the regime… The Tribunal indicated it needed to look at the situation in Fiji now."

   “The Tribunal made reference to the further advice from the Country of Origin Information .... (AAT decision para. 55 and 56)

   2.2 “The applicant and the second named applicant have admitted that false claims were made . . . . . . . . . . . . Whilst the Tribunal accepts that this is the case , it does not excuse the fact that false claims were made ........... This suggests a degree of opportunism .......... and is undermining of their credibility ......... The fact that the applicant has not maintained the claims ......... might cause the Tribunal to consider ........ claims were not true or

   exaggerated (AAT decision para. 95 and 96)

   2.3 “However, the Tribunal is not satisfied with the applicant's claim that he was warned through a third party that he would be harmed if he returned to Fiji by a military intelligence officer ............ (AAT decision para. 98)

   “The Tribunal gives weight to the DFAT assessment that ............. greater freedom in ......... expressing opposing political views." (AAT decision para. 101)

   The Applicant submits that the Tribunal acted in an unreasonable way when dealing with the Applicant's claims and failing to consider the aspect of persecution or serious harm which had to be satisfied in order to determine whether the Applicant has a well-founded fear of serious harm. The Tribunal's failure to observe this obligation amounted to a jurisdictional error.

   3. The Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant's persecution as well as considering the evidence of the applicant and the witnesses.”

8. The Applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

9. The Applicant made no relevant submission in support of any of the grounds of his application other than reiterating that everything he had said was true.

Ground 1

1. Ground 1 asserts that the Tribunal failed to accord procedural fairness to the Applicant because it should have considered all of the evidence before it rather than making a contrary finding. This allegation was not supported by any relevant oral or written submissions.

2. Ground 1 quotes extracts from the Tribunal’s decision record but did not attempt in any way to identify their relevance to the Applicant’s allegation. The Applicant was unable to identify any evidence provided by the applicants which had not been considered by the Tribunal and none is apparent from the Tribunal’s decision record or the Applicant’s migration adviser’s submissions. 

3. Otherwise, as is clear from the above summary of the Tribunal’s review and decision record, the applicants were invited to two hearings and the Tribunal took evidence from the Applicant and the Second Applicant and their three witnesses. There is nothing to suggest that the Tribunal’s review was not conducted in accordance with Part 7 Division 4 of the Act.

4. Ground 1 also complains about the weight the Tribunal gave to the Applicant’s claims. The passages quoted in support refer to the false claims made by the Applicant and the Second Applicant in 2008 and that those claims may be considered adverse to their credibility. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

5. Ultimately, the Tribunal accepted the Applicant’s claims in relation to his activities in Fiji and Australia and rejected only his claim of having been warned by a third party that he would be harmed if he returns to Fiji.

6. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

7. Further, in Ground 1, the Applicant asserted that the Tribunal erred in the weight it gave to the evidence of the witnesses as well as the letters of support. The parts of the Tribunal decision record quoted in support of that allegation refer only to independent country information relied on by the Tribunal. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

8. Ground 1 concludes with a bare assertion that the Tribunal did not assess the Applicant’s claims in a manner that is required under s.414 of the Act. That assertion is wholly unsupported by particulars or submissions, either oral or written.

9. Section 414 of the Act requires that the Tribunal review an RRT-Reviewable Decision. The Applicant has not identified any manner in which that was not done by the Tribunal and none is apparent on the face of the Tribunal’s decision record.

10. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal acted in an ‘unreasonable’ manner towards the Applicant when dealing with the Applicant’s claims because it failed to consider the claims in accordance with the Convention.

2. The quotations from Tribunal’s decision in Ground 2 did not illuminate the Applicant’s allegation in Ground 2 of unreasonableness on the part of the Tribunal. The quotations appear to be a mixture of restatement of the Applicant’s claims and findings with which the Applicant disagrees.

3. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). 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).

4. There is nothing on the face of the Tribunal’s decision record or the conduct of its review to suggest that it acted unreasonably in its consideration of the Applicant’s claims. The Tribunal’s decision record was comprehensive and detailed in its consideration of the Applicant’s claims. The Tribunal referred to the relevant statutory scheme in considering the Applicant’s claims and applied the correct law to findings it made that were open to it on the evidence and material before it.

5. Ground 2 would appear more to be a disagreement with the findings and conclusions made by the Tribunal thereby inviting merits review which this Court cannot 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.”

6. There is nothing in the Tribunal’s decision record to suggest that the Applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

7. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to request more information regarding the Applicant’s persecution and suggests that the Tribunal failed to consider the evidence of the Applicant and the witnesses.

2. Again, those allegations were unsupported by particulars and submissions, either oral or written. As stated above, the Tribunal’s decision record makes clear the comprehensive extent to which it considered the evidence of the Applicant at two hearings and the comprehensive extent to which it considered the evidence of the Applicant’s witnesses.

3. To the extent that Ground 3 is intending to allege that the Tribunal was obliged to request more information regarding the Applicant’s persecution, the function of the Tribunal is to respond to the case that the Applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

4. To the extent that Ground 3 appears to assert that the Tribunal should have requested more information, there is no general obligation on a Tribunal to investigate an Applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

5. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

6. It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] per Heerey, Nicholson and Mansfield JJ; W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 at [74]-[78] per Nicholson J; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21] per Jacobson J). However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further. Further, the Applicant did not identify any particular information that he asserts that the Tribunal should have obtained.

7. Accordingly, Ground 3 is not made out.

Section 438 certificate documents

1. In accordance with its duty as a model litigant, counsel for the First Respondent, Mr Reilly, informed the Court that a s.438 certificate has been issued in this matter. The First Respondent filed a Supplementary Court Book containing those documents. The First Respondent also read the affidavit of Brooke Marie Griffin, affirmed 5 February 2017.

2. Ms Griffin’s affidavit annexed an answer to a request made by the Applicant’s then migration agent for access to documents under the Freedom of Information Act 1982 (Cth). That letter was dated 21 November 2014 and included the documents the subject of the s.438 certificate. Those documents were tendered to the Court in a sealed envelope and were marked Exhibit 3R. They were documents which had been provided to the Applicant in answer to the Freedom of Information request. In the circumstances, it cannot be said that the s.438 certificate raised any issue of procedural unfairness in relation to the Applicant of the type considered in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183.

1. The s.438 certificate stated that the documents contained matters relevant to the Department’s internal affairs or were given to an officer of the Department in confidence. Section 438 appears to be directed to documents or information, the disclosure of which would be contrary to public interest. In any event, as stated above, the documents were provided to the applicants’ migration adviser. I have seen the contents of the envelope. They appear to be no more than internal communications relating to the applicants’ proceedings. Moreover, none are referred to by the Tribunal or appear to have any significance to the merits of the applicants’ claims.

2. The Applicant said that he wished to have an opportunity to have a lawyer  look at the documents to see if there might be anything further he may wish to say that may support an allegation of jurisdictional error on the part of the Tribunal.

3. As stated above, the Applicant was represented for nine months. At no time has there been any suggestion that the Applicant suffered any procedural unfairness as a result of the s.438 certificate. In any event, no such allegation can be made in circumstances where the documents were provided to the Applicant as is in this case.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant and the Second Applicant at two hearings; took evidence from three witnesses; and, had regard to all material provided in support. The Tribunal put to the Applicant, in particular, matters of concerns it had about his evidence and noted the Applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it 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.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. 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 ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 February 2017