BVT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 187
•3 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVT18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 187 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in failing to allow the applicant to show the Tribunal documents on his mobile phone – whether the Administrative Appeals Tribunal erred in failing to investigate the applicant’s claims – whether the Administrative Appeals Tribunal erred in its consideration of the applicant’s mental health – whether the Administrative Appeals Tribunal erred in failing to invite the applicant to send documents post hearing – whether the Administrative Appeals Tribunals findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474, 476 Migration Regulations 1994 (Cth), reg.2.01. |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 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 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 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 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 |
| Applicant: | BVT18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1022 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 4 November 2019, 3 February 2020 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2020 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Mr Leonard Leerdam (DLA Piper Australia) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1022 of 2018
| BVT18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 15 March 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 4 November 2015 refusing the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
The applicant is a citizen of China and of Christian faith who fears harm from Chinese authorities in China.
Background
The applicant arrived in Australia on 18 September 2014 having departed legally from China on a passport issued in his own name and a Tourist visa.
On 11 December 2014, the applicant lodged an application for a Protection visa with the Department of Immigration and Border Protection (“the Department”).
On 4 November 2015, the Delegate refused the applicant’s application for a protection visa.
On 1 December 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 15 March 2018, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 12 April 2018, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
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.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
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”).
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.”
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.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
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.
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.”
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.
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.
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).
Applicant’s claims and decision of Tribunal
The applicant’s claims and the decision of the Tribunal are accurately summarised in the submissions of the respondents as follows:
“4. The applicant claimed that he was a Christian who has suffered past harm in China due to his religious belief. In his written claims, the applicant claimed that:
4.1 He was born into a Christian family and had been raised a Christian. He had set up a rental car company in 1988 which faced initial difficulties but with prayer those problems were resolved.
4.2 On 9 June 2012, he and twelve other followers held a family church gathering at a house. Five police officers came and told them that what they were doing was illegal. The police took everyone away to the police station and the applicant was beaten and tortured. He was detained for one week and released after paying a fine of RMB10,000. Subsequent to this, the police often came to his house and his company to conduct checks on him. With police coming to his company, he lost his customers
4.3 On 23 November 2013, he and other followers held a family church gathering at a different house. Police came and took him to a labour camp where he was beaten and abused. He was detained for one month and released after paying a fine of RMB10,000. He was interrogated at night, often not allowed to eat and was beaten and abused. He was also forced to sign a 'guarantee' renouncing his past practice. Subsequent to this, the police often came to his home and company to conduct checks on him. He was warned that if he was found gathering again, he would be punished.
5. The applicant attended an interview in support of his application on 3 November 2015. At the interview the applicant advanced an additional claim that if he returned to China local officials would try to force him out of the car rental market.
6. The application was refused by a delegate of the first respondent on 4 November 2015.
7. The applicant applied to the AAT for review of the delegate's decision on 1 December 2015. He appeared at a hearing on 30 October 2017.
7.1 When the applicant attended the AAT hearing, he was asked if there was anything that would have a negative impact on his ability to give evidence to the AAT. The applicant told the AAT that he had had a glass of white wine, a glass of red wine and a glass of beer before the hearing. The hearing commenced at 8.45am and he had his last drink at 7.30am. The AAT expressed concern about proceeding with a hearing in these circumstances; however, the applicant stated that he wished the hearing to proceed.
7.2 The applicant told the AAT that he drank because he was unhappy and that this was normal for him. He drank alcohol all the time and conveyed to the AAT that he was an alcoholic. He stated that he had been waiting a long time for the hearing and wanted for it to proceed.
7.3 Notwithstanding that the applicant wanted to proceed with the hearing, the AAT noted that it needed to reach its own conclusion whether it was appropriate to proceed. The AAT observed that the applicant did not appear to be under the influence of alcohol and appeared to be able to give cogent evidence. Further, the AAT noted that if the applicant was a daily drinker then the AAT would find itself in the same position whenever the hearing was held. In addition, the AAT noted that if it told the applicant it would only hold a hearing if he had not consumed alcohol, the AAT would find itself taking evidence that would be impacted by someone who was suffering from alcohol withdrawal. The AAT noted that the hearing lasted for three hours and its observations of the applicant did not raise any concerns that the applicant was not in a position to give evidence and that the hearing needed to be adjourned.
8. On 15 March 2018, the AAT affirmed the decision under review.
The decision of the Tribunal
9. The AAT found that there was an inconsistency between the applicant's written claims and his evidence at the delegate's interview and during the AAT hearing regarding how he became a Christian. In his written application, the applicant stated that he had grown up in a Christian household, but to both the delegate and AAT he stated that he came to Christianity later in life ([29]).
10. The applicant told the AAT that he had not been detained in 2012 for seven days as outlined in his written application, but that he had been detained for two hours. The AAT noted that this was inconsistent with what he told the delegate, namely that he had not been detained at all and was merely pushed by the police at the gathering he attended. He told the AAT he was not fined as claimed in the written application ([30]).
11. The applicant told the AAT that he was not detained in 2013 and sent to a labour camp following attendance at the family gathering. His evidence to the AAT was that police attended on his house and once the police realised that the applicant's girlfriend worked in government, the police left. He told the AAT that he was not fined as claimed in the written application. When asked by about these inconsistencies, the applicant stated that it may have been that the person who completed the claims on his behalf was trying to be helpful because the applicant's claims were not strong enough to be grounds for a claim ([31]-[32]).
12. The AAT was concerned by the applicant's evidence regarding his Christianity. The AAT did not accept the applicant's explanation that the inconsistencies between his written application, his evidence to the delegate and his evidence to the AAT was due to 'translation problems' or due to the person who helped him complete the forms putting in information to assist with the claims. The AAT noted that the applicant had signed the forms stating that the contents of his application were true, and there were also inconsistencies between what he told the delegate and what he told the AAT, namely the period of detentions in 2012 and 2013 ([34]).
13. The AAT did not accept that the applicant is a Christian, that he had attended any Christian gatherings in China, that he had ever been detained or assaulted by the authorities in China, that he had ever had to pay a fine to Chinese authorities because of his involvement in house church activities, or that the authorities had ever attended any of his places of business due to their concern about his religious activities in China ([35]-[36]).
14. The AAT noted that at the delegate interview, the applicant stated that he had trouble with the Chinese authorities regarding his business activities. At the time of the delegate's interview, the applicant stated that he owned four car companies and that officials were trying to force him out of the car market ([37]). The AAT noted that at the hearing, the applicant was at pains to demonstrate that he had been wrongly treated by the Chinese authorities in his business activities. He told the AAT that in 2016, his taxi businesses were taken over 'illegally' by the local authorities and that the local authorities gave his business to other companies to operate. He said that his house was auctioned off by the authorities and that he now had no businesses in China ([38]).
15. The AAT noted that it was clear from the way the applicant presented his evidence that he was very frustrated by the fact that he was previously a successful businessman in China and now no longer had his businesses. He spoke to the AAT at length of wishing to affect change in China and that he wanted to participate in a revolution to overthrow the leadership. He told the AAT that he was depressed and had turned to alcohol and gambling in Australia as a result of losing his businesses ([40]).
16. The AAT was satisfied that the applicant had previous businesses in China and that he had encountered problems with local officials in regard to his businesses and the AAT was satisfied that the applicant had expressed dissatisfaction to colleagues and former colleagues about the Chinese political system. However, the AAT was not satisfied that the authorities in China were aware of any of these communications. The applicant's evidence to the AAT was that the authorities had asked his assistant the location of the applicant and that this was in connection with an allegation that the applicant had 'taken money out of the country'. There is no evidence before the AAT that the applicant is being sought for questioning because of his political opinion or his expression of dissatisfaction with the Chinese political system ([41]).
17. The AAT concluded that the applicant did not satisfy the criteria set out in section 36(2)(a) or (aa) for the grant of a protection visa ([42]-[47]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 3 May 2018, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also 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 a callover on 13 June 2019 before me.
On 13 June 2019, the matter was set down for hearing on 4 November 2019 at 10:15am
At the commencement of the hearing on 4 November 2019, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 12 April 2018 as follows:
“1. In the Immigration Bureau interview, I think that officials have intimidated me and said that they would leak my information to other countries. I have experienced it twice. This has caused serious damage to my spirit and psychology for three years. It caused me to drink alcohol every day, causing serious damage to my body. Due to drinking, I have a problem with my right knee now. I have seen Chinese medicine doctor. The diagnosis of traditional Chinese medicine doctor said it was caused by drinking. This incident also caused great harm to my spirit. I was seeking protection from the Australian government. However, I was not protected. It also caused greater mental stress and injuries. I can't go back to China, but the Immigration Bureau made me feel threatened and falsely protected. You can cancel the protection visa for the Chinese and close this door. There is no need to give me second injury. In this way, I can fly to other countries before the travel sign expires, there is no need to endure the second injury in Australia. I reserve the right to sue the immigration authorities for compensation in the next step. While I was in Australia, the company was snatched by corrupt officials and the loss was as high as 30 million RMB. In addition, my house was also illegally auctioned, worth 6 million yuan. My body has problems with my legs now. Since you do not have the ability and patience to provide protection for the Chinese, you should not open this door. Do not only be a gentleman, but also be a hypocrite.
2. AAT interview officials are very good, very gentlemen, a typical representative of British culture, he is very patient. I began to describe what happened in China and what happened in Australia from 9:00 onwards, including the illegal acquisition of the company by corrupt officials (because of my beliefs), and my current political beliefs (I am against a party Dictatorship, I expressed appreciation and study of Taiwan's political party system, and I expressed this point of view in the company. This document is now filed with the Public Security Bureau, the National Security Agency and the National Security Center (this is a special agency). My assistant was taken to the National Security Center (but I drink alcohol and melancholia every day. I don't know whether it's the National Security Center or the National Security Bureau. I have some cards and you can also get evidence).
3. AAT’s translator is a very good translator, and I think he has 99% accuracy in the translation of what I want to say. But during 11:30 – 11:49 he expressed that he had something to leave because of the timeout three times. At the 12 o'clock, the official asked me about my last question about faith. In fact, I have a lot to say about this issue, but in the end it did not give me time and opportunity to express my point of view. The translator repeatedly expressed his psychological pressure because of the time he had left and left me unable to speak. It is unfair, irrational, inhuman and cruel to reject me in this way. Because I left Australia, I cannot return to China. Where am I going? Go to the sea?
4. I am a person who can create wealth, not a person who consumes wealth. I create wealth and pay taxes and state expenses far more than any country has brought me. I did not work in Australia for a day. I did not come to Australia to work and earn money. I was here to pursue freedom and appreciate political freedom in a multi-party system. And I have the ability to continue to create wealth, of course, in a multi-party system and legal supremacy country.”
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
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.
At the commencement of the applicant’s submissions on 4 November 2019, the applicant stated that at the hearing he had wanted to show the Tribunal member a document on his phone and had not been allowed. He said that he had waited for 4 months for the Tribunal’s decision and had asked why the Tribunal had not asked him to provide the documents in writing.
The applicant’s grounds expressed above do not identify with particularity such a complaint which plainly requires evidence. As the applicant was unrepresented, I granted leave to the applicant to file and serve an amended application, any additional evidence, including the transcript of the Tribunal hearing, and submissions in support, and stood the matter over for hearing today. The applicant was also provided at that time with the contact details of legal services providers and translation and interpreting services in documents headed in his own language.
Pursuant to that leave, the applicant filed an affidavit by him, sword 16 December 2019 and filed 17 December 2019. The affidavit attached what the applicant described as an “extracted translation” in relation to his request to show the Tribunal member information on his mobile. The affidavit reiterated the applicant’s complaint about not being able to show the Tribunal member the information on his mobile phone and his complaint that the Tribunal did not give him an opportunity to provide further material following the hearing. The affidavit also asserted that the Tribunal had failed to verify or investigate his claims in breach of their duty. The affidavit also restated some of the applicant’s claims and complained that his statements and facts were not given sufficient weight, carefully questioned or seriously investigated. The affidavit also stated that the applicant suffers from depression and that the Tribunal did not pay sufficient attention to that fact and failed to give proper consideration to his physical and mental damage.
At the hearing today, the applicant confined his complaints to the Tribunal’s failure to look at the screen shots on his mobile phone and the Tribunal’s failure to invite him to provide the documents on his mobile phone in writing. The applicant said that he wanted to provide evidence and should have been given the opportunity. In his affidavit, the applicant stated that the documents on his mobile phone served as his political statement and declaration and were proof of his political views against one party autocracies and their corruption.
Otherwise, the applicant made no submissions in support of any other of the complaints identified in his initiating application and his affidavit filed on 17 December 2019.
The first respondent read the affidavit of Jessica Ruth Noaksmith affirmed 21 January 2020, which annexed an extract from the transcript of the Tribunal hearing. That extract was received from Auscript and I accept it to be an accurate transcript of the hearing. The document describe as an “extracted translation” attached to the applicant’s affidavit is not certified by the interpreter. To the extent it differs from the Auscript transcript attached to Ms Noaksmith’s affidavit, I prefer the Auscript transcript as accurately reflecting the transcript of the hearing. However, the differences in the extracts are not critical and both make clear that the applicant asked if he could show the Tribunal member documents on his mobile phone and was told, No.
The transcript makes clear that the Tribunal member was exploring whether the applicant or his assistant had been contacted by a member of the security services. The applicant had stated that his assistant had been taken by the National Security Bureau to investigate the applicant, however he could not remember when. It was a screenshot of that email from his assistant to that effect that the applicant wished to show the Tribunal. While the Tribunal refused the applicant’s request to turn on his mobile phone, the Tribunal member invited the applicant to say how he was contacted by security and whether it was in an email, or had his assistant passed on the message. The applicant responded that he had communicated with his assistant by email. The Tribunal member then asked the applicant, did his assistant pass on a message that the security services were looking for the applicant. The applicant answered, Yes.
In its decision record, the Tribunal noted that the applicant had sent emails critical of China and which the applicant had stated could be considered a crime of wanting to overthrow the government in China. The Tribunal noted that the applicant said that the messages had been viewed by an employee who the applicant subsequently fired because of embezzlement of company funds, and the applicant feared that employee may report those messages to authorities in China. The Tribunal also noted that the applicant had stated that his assistant in China had been taking for questioning either in 2015 or 2016 as the authorities wanted to know where the applicant was, because the authorities suspected the applicant of taking money out of the country.
The Tribunal was satisfied that the applicant had expressed dissatisfaction to colleagues about the Chinese political system, although it was not satisfied that the authorities were aware of those communications. In relation to the applicant’s claim that the authorities had asked his assistant the location of the applicant because the applicant had taken money out of the country, the Tribunal found there was no evidence before it that the applicant was being sought for questioning because of his political opinion or his expression of dissatisfaction with the Chinese political system.
These findings by the Tribunal, which were open to it on the evidence and material before it and for the reasons it gave, make clear that the Tribunal accepted what the applicant told the Tribunal was the substance of the information on his mobile phone and that the Tribunal had accepted that evidence and given it proper consideration.
In the circumstances, there is no jurisdictional error on the part of the Tribunal in failing to look at the material on the applicant’s mobile phone. Nor, in the circumstances, was it necessary for the Tribunal to invite the applicant to send copies of the information on the applicant’s mobile phone post hearing.
In relation to the applicant’s complaint that the Tribunal failed to investigate the applicant’s claims 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). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Further, 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).
In relation to the applicant’s complaint that the Tribunal ignored his mental and physical state, the Tribunal noted that the applicant said that he had mental health problems, was depressed because of his circumstances and had gastroenteritis. However, he had not received a diagnosis or mental health treatment for his mental health condition. The Tribunal noted that the applicant was asked if he wished to adjourn the hearing if he was unwell. The applicant responded that he wished to proceed with the hearing. The Tribunal noted that the applicant said he was an alcoholic. However, the Tribunal observed that the applicant did not appear to be under the influence of alcohol and appeared to give cogent evidence. The Tribunal found that its observations of the applicant did not raise any concerns that the applicant was not in a position to give evidence or that the hearing needed to be adjourned.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the applicant’s claims and explored them with the applicant in some detail at the hearing. The Tribunal put to the applicant inconsistencies in his evidence and noted that applicant’s responses. However, ultimately, the Tribunal rejected the applicant’s claims to be a Christian or to have suffered past harm in China for that reason, and, as stated above, did not accept that the applicant was being sought for questioning in China for his political opinion.
The Tribunal findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Otherwise, the applicant’s complaints about the Tribunal findings appear more to be a disagreement with the findings and conclusions of 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).
Accordingly, none of the applicant’s complaints establish jurisdictional error in the Tribunal’s decision.
Conclusion
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.
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.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 3 February 2020
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