BRB15 v Minister for Immigration

[2016] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRB15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 885

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Tribunal’s decision affected by jurisdictional error – whether the Tribunal considered the Applicant’s explanations for inconsistencies in his evidence – whether the Tribunal erred in finding that the Applicant was not a person to whom Australia had protection obligations under the complementary protection criterion – whether the Tribunal was required to consider the Applicant’s claims under section 91R of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 48A, 65, 91R, 411, 417, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
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
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
SZRAG v Minister for Immigration and Border Protection [2016] FCA 189
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
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
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

First Applicant: BRB15

Second Applicant: BRC15

Third Applicant: BRD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2281 of 2015

Judgment of: Judge Emmett

Hearing dates:

12 November 2015

18 November 2015

18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Sydney

Delivered on: 18 April 2016

REPRESENTATION

The First Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Mr Andras Markus
(Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2281 of 2015

BRB15

First Applicant

BRC15

Second Applicant

BRD15

Third 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 2 July 2015 and handed down on that day (“the Tribunal”).

2. The first applicant claims to be a citizen of the People’s Republic of China (“China”) and a baptised Christian, who fears harm from the Chinese authorities (“the Applicant”). The second applicant is the wife of the Applicant, who is of the same nationality and religious faith as the Applicant. The third applicant is the son of the Applicant and the second applicant, who was born in Australia. The second and third applicants were included in the Applicant’s application for a protection visa as members of the Applicant’s family unit. Their claims are wholly dependent on those of the Applicant.   

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 26 March 2007, the Applicant and his wife arrived in Australia on visitor visas.

2. On 8 May 2007, the Applicant and his wife lodged an application for a protection (Class XA) visa (“the First Application”) with the Department of Immigration and Citizenship (“the Department”). On 31 May 2007, a delegate of the Department refused the Applicant’s First Application for a protection visa. That decision was subsequently affirmed by the Refugee Review Tribunal and an application for judicial review of that decision was dismissed by the Federal Magistrates Court. The Applicant was also unsuccessful in his application for Ministerial Intervention pursuant to s.417 of the Act.

3. On 2 July 2012, the third applicant, who was born on 21 January 2008 in Australia, applied for a protection visa. That application was refused by a delegate of the Department on 22 October 2012. His application for review by the Refugee Review Tribunal was unsuccessful, as was a further application for Ministerial Intervention pursuant to s.417 of the Act.

4. On 28 October 2013, following the handing down of the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”), the Applicant and his family lodged a new application with the Department for a protection visa (“the Second Application”).  This allowed the Applicant to have an opportunity to meet the complementary protection criterion which was not available to him at the time of the hearing of the First Application.

5. On 27 June 2014, the Delegate refused the Applicant’s Second Application for a protection visa.

6. On 30 July 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

7. On 2 July 2015, the Tribunal affirmed the decision of the Delegate not to grant a protection visa on the basis that the Applicant did not meet the complementary protection criterion.

8. On 18 August 2015, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. 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).

2. Section 36(2) 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”).

3. 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.”

4. The complementary protection criterion is provided for in s.36(2)(aa) of the Act, as follows:

   “(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.”

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

6. Further, s.48A(1) of the Act relevantly provides that where an application for a protection visa made by a non-citizen whilst in the migration zone has been reused or finally determined, that person may not lodge a further application for a protection visa, or have a further application for a protection visa made on his or her behalf.

7. However, s.48A(1) of the Act does not prevent the making of a further application for a protection visa on complementary protection grounds where the prior application was made and refused before the commencement of the complementary protection criterion on 24 March 2012 (see SZGIZ).

8. 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.

9. 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.”

10. 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.

11. 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.

12. 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 is a baptised Christian;

   b)He was arrested and persecuted by the Chinese authorities due to his involvement with a local family church in China;

   c)As a result of his arrest, he would be subjected to social discrimination if he returns to China and would not find employment;

   d)In October 2013, his church was searched by Chinese authorities and all church participants were arrested and incarcerated;

   e)The Chinese government still suppresses religious freedom and he believes that he would be subject to harm if he returns to China due to his active involvement with the local family church;

   f)The Applicant refuses to join a patriotic Christian church because it is controlled by the Chinese government; and  

   g)It would be a humanitarian disaster if he and his family were sent back to China.

The Delegate’s decision

1. On 26 June 2014, the Applicant and his wife attended an interview with the Delegate.

2. Although the Delegate accepted that the Applicant and his wife were Christians, the Delegate found that they were not devout Christians. In particular, the Delegate noted that the Applicant had limited knowledge of Christianity; attended non-Anglican churches for convenience; and, did not attend Sunday services due to work commitments.

3. Since the Applicant was not a devout Christian, the Delegate found that he could attend a patriotic Christian church if he returned to China which would avoid persecution by the Chinese authorities.

4. On 27 June 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.

The Tribunal’s review and decision

1. On 30 July 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.  The Applicant provided no further documents in support of his review application.

2. On 26 March 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 23 June 2015 to give oral evidence and present arguments.

3. On 23 June 2015, the Applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal noted that the Applicant’s previous protection visa application had been made and determined prior to 24 March 2012. Accordingly, the Tribunal found that the Applicant and his wife were not prevented from making an application for a protection visa under the complementary protection criterion in s.36(2)(aa) of the Act. However, the Tribunal found that since the third applicant’s application was made after 24 March 2012, he was prevented under s.48A of the Act from making a further application for a protection visa on either the Convention grounds or the complementary protection criterion. Accordingly, the Tribunal found that the third applicant’s application could only be considered on the basis of his membership of his parents’ family unit.

5. The Tribunal explored the Applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

6. The Tribunal rejected the Applicant’s claim that he was arrested by Chinese authorities in October 2006. In particular, the Tribunal noted that the Applicant provided inconsistent evidence in relation to when the alleged arrest occurred and the duration of his incarceration.

7. The Tribunal also rejected the Applicant’s claim that he was arrested by the Chinese authorities for a second time on 6 January 2007. The Tribunal noted that the Applicant had applied for a visitor visa on 3 January 2007. The Tribunal found this to be inconsistent with the Applicant’s oral evidence before the Delegate and the Tribunal that he decided to come to Australia following his escape from the police on 6 January 2007.

8. Further, the Tribunal found the Applicant’s evidence in relation to his alleged escape from the police following his second arrest to be implausible. The Applicant claimed that he jumped out of a moving vehicle as the Chinese authorities were transporting him to a place of detention, which injured his back severely. The Tribunal found it implausible that given the Applicant’s severe injury, the Chinese authorities would not simply stop the vehicle and retake the Applicant into custody.

9. The Tribunal rejected the Applicant’s claim that he was a Christian. In particular, the Tribunal found that the Applicant could not answer basic questions in relation to Christianity. The Tribunal found that the Applicant’s evidence that he had attended 20 to 30 church services in Australia over a period of more than eight years was not an indication that the Applicant is a genuine Christian. In reaching that finding, the Tribunal also had regard to its adverse credibility finding that the Applicant had not been involved in a Christian church in China as well as the Applicant’s “poor responses” to the Tribunal’s basic questions about Christianity.

10. The Tribunal found that there was no credible evidence before it that anyone in China would threaten harm to the Applicant for any reason. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there is a real risk that the Applicant would suffer significant harm. Accordingly, the Tribunal found that the Applicant did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal therefore affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter. 

2. On 24 September 2015, the Applicant attended a directions hearing before a Registrar of the Court. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with 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 an extension of time hearing on 12 November 2015, before me.

3. On 12 November 2015, the Applicant appeared before the Court in person with the assistance of a Cantonese interpreter. On that occasion, the matter was adjourned to 18 November 2015.

4. On 18 November 2015, the Applicant appeared before the Court in person with the assistance of a Cantonese interpreter. On that occasion, time was extended to the Applicant to seek judicial review of the Tribunal’s decision and the matter was set down for final hearing. The Applicant was again granted leave to file and serve an Amended Application, any further evidence, and submissions in support of his application for judicial review. The directions made by me on 18 November 2015 also noted that the Applicant had been provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language at the directions hearing before a Registrar of the Court.  

5. 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.

6. The Applicant confirmed that he relied on the ground contained in his initiating application filed on 18 August 2015, as follows:

   “The Tribunal made some error in making the decision on my review application.”

7. That ground was interpreted for the Applicant and the Applicant was invited to say whatever he wished in support of that ground and in support of the application generally. I explained to the Applicant that it was not for this Court to reconsider the Tribunal’s findings and conclusions. I explained to the Applicant that this Court had no power to interfere with the Tribunal’s decision unless it was satisfied that the Tribunal’s decision was affected by a mistake going to the jurisdiction of the Tribunal.

8. The substance of what the Applicant told the Court this morning cavilled with the various factual findings made by the Tribunal and, in particular, the Tribunal’s finding that the Applicant was not a credible witness.

9. The Applicant sought to provide an explanation in relation to the Tribunal’s concern that the Applicant had made no mention of an injury he claimed to have sustained whilst attempting to escape from police custody in China. The Applicant said that the Tribunal had asked why the Applicant had not mentioned his injury prior to the hearing before the Tribunal. The Applicant told the Court that he did not know what facts to refer to and that a friend had written his visa application. Further, the Applicant queried how he was to know what facts he should have referred to in support of his claims.

1. The Tribunal’s decision record discloses that it discussed various contradictions and inconsistencies that it found to exist between the Applicant’s oral evidence to the Tribunal and his statement accompanying his protection visa application.  The Tribunal noted that the Applicant stated that he did not realise he needed to put in a lot of detail. 

2. On 18 November 2015, the Applicant was directed to file and serve any evidence, including any transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

3. The Applicant made a further complaint this morning that it was difficult for Cantonese people to speak Mandarin.  It was not clear to me whether that was a complaint that the Applicant was making in respect of the Tribunal hearing. However, the Tribunal’s review discloses that the Applicant had a Cantonese interpreter to assist him at the hearing before it.

4. Furthermore, the Applicant referred this morning to his failure to attend a hearing before the Refugee Review Tribunal in respect of his First Application which affirmed a decision of the delegate of the Department in respect of his First Application for a protection visa in 2007.  The Tribunal noted the discussion that it had with the Applicant about the opportunity he had been given to attend a hearing before the Refugee Review Tribunal in 2007. The Tribunal noted the Applicant’s response that he had not attended that hearing because he could not find the location and had no one to help him.

5. The Tribunal rejected that explanation for various reasons including that, at the time, the Applicant was living with his elder brother who was an Australian citizen. The Tribunal ultimately concluded that the Applicant had chosen not to attend the hearing before the Refugee Review Tribunal in 2007. The Tribunal found that, in those circumstances, the Applicant did not have a genuine fear of harm in China at the time he came to Australia. 

6. The Applicant also complained this morning that the Tribunal disbelieved his explanation in relation to an alleged arrest on 4 October 2006 and the relativity of that date to China’s National Day. However, the Tribunal’s decision record discloses that the Tribunal accepted the Applicant’s explanation that the inconsistency between his claim that he was arrested on 4 October 2006, being 2 days before China’s National Day, and his oral evidence to the Tribunal that 4 October 2006 was 2 days before the mid-autumn festival, was based on a translation error when he gave that evidence to the Delegate.

7. Otherwise, the Tribunal comprehensively rejected the Applicant’s claims to have ever suffered harm in China by reason of being a Christian. The Tribunal did not accept that the Applicant had ever been involved in a Christian church in China and found that the Applicant’s decision for him and his wife to travel to Australia was not motivated by any fear of mistreatment by the Chinese authorities. The Tribunal did not accept that the Applicant had any knowledge of Christianity when he arrived in Australia, but accepted that the Applicant had gained some knowledge of Christianity since arriving in Australia. However, the Tribunal found that the Applicant had done so in order to overcome his lack of such knowledge at the time he arrived in Australia. Accordingly, the Tribunal found that the Applicant did not have any genuine commitment to Christianity and that neither he nor his family would involve themselves in the activities of a Christian church if they were to return to China. 

8. Based on those findings, the Tribunal was not satisfied that the Applicant would face any harm in China.

9. The Tribunal’s findings were open to it on the materials and evidence 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) (“Durairajasingham”). 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) (“Kopalapillai”).

10. The Tribunal noted that the Applicant raised no other claims before it other than those it had addressed, and that in the circumstances, there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there was a real risk that he would suffer significant harm.

11. Accordingly, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal noted that the second and third applicants’ claims were based solely on those of the Applicant.

12. It is well established that it is acceptable for a tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

13. At the hearing of the Applicant’s application for an extension of time on 18 November 2015, an issue arose as to whether the Tribunal was obliged to consider s.91R of the Act. That issue was not taken up by the Applicant after that hearing, and further, it did not form any basis of the Applicant’s grounds before this Court.

14. However, for the sake of completeness, I accept in their entirety the written submissions of the first respondent’s solicitor, Mr Andras Markus, as follows:

    “Section 91R(3) of the Migration Act 1958

    5. At the hearing of the extension of time application, in light of the Tribunal's acceptance that the applicant had attended church services in Australia from time to time, the Court expressed concern with respect to the question whether the Tribunal considered s 91 R(3) of the Act.

    6. As noted at paragraph 4 to 6 of the first respondent's submissions dated 9 November 2015, the Protection visa applications lodged on 28 October 2013 was the second application for a Protection visa by each of the applicants, made following the Full Federal Court's judgment in SZGIZ. 

    7. In dealing with the application for review before it, the Tribunal considered that, as the first and second applicants' previous application was made and determined prior to the commencement of the complementary protection provisions on 24 March 2012, s 48A of the Act did not prevent them from making a valid application on 28 October 2013. The Tribunal also held, however, that in considering the first and second applicants' claims, it was limited to doing so in the context of the complementary protection provisions. This approach is consistent with current Federal Court authority: see AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 at [44] per Markovic J; approved in SZRAG v Minister for Immigration and Border Protection [2016] FCA 189 (SZRAG) at [23] per Katzmann J.

    8. Section 91 R of the Act (which was repealed on 18 April 2015) was a provision that defined aspects of the term 'persecution' for the purposes of determining whether a person has a well-founded fear of persecution for a Refugees Convention reason. The provision was therefore relevant only to consideration of the question whether the criterion for a protection visa in s 36(2)(a) of the Act was satisfied. The Tribunal did not refer to s 91 R (or more specifically, s 91 R(3)) of the Act in its decision record because that provision was not relevant to the complementary protection criterion (SZRAG at [23]).

    9. While it would have been open for the Tribunal to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as a result of his church attendance in Australia, that issue did not arise on the claims made by the applicant.

    10. Relevantly, the applicant claimed to fear harm in China as a result of his practice of Christianity in China. This was his only claim. The applicant did not claim that he would come to the adverse attention of the Chinese authorities, and face significant harm, as a result of his church attendance in Australia. His church attendance in Australia was relied upon only for the purpose of establishing that he was a genuine Christian. The Tribunal, however, did not accept that he was a genuine Christian or that he had ever been involved with a Christian church in China. In those circumstances, the Tribunal's conclusion that the applicant did not satisfy s 36(2)(aa) was inevitable.”

15. I am satisfied that 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. As stated above, credibility findings are a matter par excellence for the Tribunal (see Durairajasingham at [67] per McHugh J). Again, 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).

16. The Tribunal’s decision record makes clear that it otherwise gave to the Applicant information that it was of the view would be the reason or part of the reason for affirming the decision under review in accordance with s.424AA of the Act. Again, no complaint is made by the Applicant as to the Tribunal’s compliance with that section.

17. 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).

18. The Applicant’s complaints do not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The Applicant’s complaints, such as they are, invite 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.”

19. There was no other information before the Tribunal and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

Conclusion

1. 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, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. Further, Exhibit 1R makes clear that the Tribunal complied with the legislative scheme in inviting the Applicant to attend a hearing to give evidence and present arguments relating to the issues arising in his case.

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 jurisdiction to interfere.

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

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  29 April 2016