BZADM v Minister for Immigration

[2013] FCCA 1563

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1563

Catchwords:
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for judicial review.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 430, 430A.

The Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR & Anor Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

Applicant: BZADM

First Respondent:

MINISTER FOR IMMIGRATION,

MULTICULTURAL AFFAIRS &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1017 of 2012

Judgment of: Judge Howard

Hearing date: 24 July 2013

Date of Last Submission: 24 July 2013

Delivered at: Brisbane

Delivered on: 9 October 2013

REPRESENTATION

Applicant: In Person

Solicitors for the First

Respondent:

Sparke Helmore

ORDERS

1. That the Application is dismissed.

2. That the First Respondent has seven (7) days in which to forward to the Court and to the Applicant the fixed costs amount which it claims.

3. That within fourteen (14) days of the delivery of the Judgment the Applicant shall provide in writing to the Court and to the First Respondent a copy of his submission in relation to the costs application made by the First Respondent.

IT IS NOTED:

A.In the event that the Applicant does not forward a costs submission within the time frame mentioned in paragraph (3) of this Order the Court will proceed to decide the question of costs in the absence of such submission.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1017 of 2012

BZADM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a citizen of Indonesia. 

2. The Applicant was born on 1 January 1982.  The Applicant arrived in Australia on 1 February 2012.  The Applicant was the holder of a Subclass 676 Tourist visa. 

3. On 29 February 2012 the Applicant applied to the Department of Immigration and Citizenship (as it was then known) (hereinafter, “the Department”) for a Protection visa.

4. Exhibit 1 in these proceedings is the Court Book.  The Court Book contains (between pages 11 and 25) the Applicant’s Application for a Protection (Class XA) visa.  From page 17 through to page 20 of his Application the Applicant has set out the basis of his claim for a Protection visa.  In paragraphs 42, 43, 44, 45 and 46 of the Application for Protection visa the Applicant has included similar information.  I will include in here the details contained in paragraph 42 of the Applicant’s Application:-

   “42. Why did you leave that country?

   IN ORDER TO AVOID A RISK OF BEING KILLED IN INDONESIA, I LEFT OUT OF INDONESIA. MY ETHNICITY IS CHINESE. I WAS DISCRIMINATED IN INDONESIA. WHEN I STUDIED IN PRIMARY SCHOOL AND HIGH SCHOOL, ALL OF MY CLASSMATES LOOKED DOWN ON ME JUST BECAUSE OF MY ETHNICITY. AFTER I GRADUATED FROM HIGH SCHOOL I DID NOT ENTER UNIVERISTY JUST BECAUSE OF MY ETHNICITY. IF I WERE LOCAL INDONESIAN, I COULD ENTER UNIVERSITY. I WERE DEPRIVED THE RIGHT TO GO TO UNIVERSITY AS A CHINESE INDONESIAN.

   IN 2004, MY FRIEND’S UNCLES MR ARSYAD LIS BOUGHT A MUSLIM TEMPLE BELONG TO LOCAL INDONESIAN. MR ARSYAD LIS WANTED TO BUILD A NEW HOTEL IN THE AREA AFTER HE BOUGHT THE PLACE. THOSE LOCAL INDONESIAN DID NOT ALLOW HIM TO MOVE THE TEMPLE TO OTHER PLACE. ANYWAY IN THE END THE HOTEL WAS BUILDED IN THE PLACE WHERE THE MUSLIM TEMPLE HAD LOCATED. THE HOTEL WERE SURROUNDED BY MANY LOCAL INDONESIAN. MR ARSYAD LIS AND OTHER MANY PEOPLE INCLUDING ME WERE INSIDE OF THE HOTEL. THOSE LOCAL INDONESIAN ASKED MR ARSYAD LIS TO BUILD A NEW MUSLIM TEMPLE AT THE SAME PLACE. OTHERWISE, THEY WOULD KILL ALL OF US. THEY EVEN SHOUTED : “KILL ALL THOSE CHINESE INDONESIAN.”. LATER THEY RUSHED INTO THE HOTEL. THEY KIDNAPPED ALL OF US. THE STARTED TO TORTURED US. THEY KEPT ALL OF US IN A SMALL ROOM FOR MANY DAYS. THEY EVEN THREATENED TO KILL US. UNDER MY FRIEND’S HELP, I ESCAPED THE HOTEL. I REPORTED TO POLICE. THOSE POLICEMEN DO NOT WANT TO BE INVOLVED. THE POLICE EVEN WANTED TO PUT ME INTO JAIL. THE CHINESE EVEN TOLD ME THAT ALL CHINESE INDONESIAN SHOULD BE TREATED IN THIS WAY. NO ONE CAN HELP ME. THOSE LOCAL INDONESIAN KNEW I ESCAPED. THEY LOOKED EVERYWHERE FOR ME. THEY WANTED TO DETAIN ME AGAIN. I KNEW IF I WERE CAUGHT BY THOSE LOCAL INDONESIAN, THEY WOULD KILL ME. IN ORDER TO AVOID A RISK OF BEING KILLED, I HAD TO LEFT OUT OF INDONESIAN.”

5. In summary – the Applicant has claimed that his friend’s Uncle had built a hotel on the site of a “Muslim Temple” and, at the end of January 2012, local Islamic Indonesians surrounded the hotel; then rushed into the hotel and kidnapped the Applicant and others.  The Applicant claims that both he and the others were tortured and kept in a small room for many days.  The Applicant says that the local Islamic Indonesians threatened to kill the Applicant and his friends/colleagues.  The Applicant says that he managed to escape with assistance and reported to Police but claims that the Police refused to assist – apparently because the Applicant is a Chinese Indonesian. 

6. On 14 March 2012 the Department wrote to the Applicant and invited the Applicant to contact the Department if he wished to attend an interview. 

7. On 23 March 2012 the Applicant forwarded to the Department documents written in Indonesian.  The Applicant did not seek an interview with the delegate.  Further, the Applicant did not provide any further material.  I note page 45 of the Court Book (Exhibit 1) and in particular the paragraph numbered 3.  That page of the Court Book forms part of the delegate’s decision.

8. On 28 March 2012 the Department again wrote to the Applicant and on this occasion invited the Applicant to forward any additional information for the delegate’s consideration – in particular – drawing to the Applicant’s attention that new legislation had come into effect, “adding complementary protection provisions to the Migration Act, 1958”.  The Applicant did not reply to the letter dated 28 March 2012.

9. A delegate of the Minister refused to grant a Protection visa to the Applicant.  The delegate made the decision on 4 May 2012.  In essence, the delegate concluded that the Applicant lacked credibility.  I note that paragraph 9 of the delegate’s decision (Court Book Exhibit 1 page 47) states:-

   “9. FINDINGS OF FACT (CREDIBILITY)

   The applicant’s claims are very vague and lacking in detail. The applicant has not sought an interview to discuss his claims, nor has he provided any additional information in English. Although claiming that he fled Indonesia in February 2012, information in his protection visa application indicates that he has had stable employment since 2003 and that he lived at the same address from February 2002 to February 2012. No information has been submitted to substantiate that he was detained, tortured because he was in the wrong place at the wrong time or that the police did not provide him with protection.

   The articles submitted by the applicant to support his claims are written in Indonesian. I have located an article written in English that relates to the same hotel on the same date. This article written in English from the Jakarta Post, dated 28 January 2012, indicates that tyres were burnt outside the front of the Emerald Garden Hotel as a result of protestors not being able to speak to the hotel owner over the relocation of a mosque (CX286209). I can find no country information to support the applicant’s claim that an angry crowd of people attacked, kidnapped and tortured anyone at the Hotel or that the police were unable to assist them.

   I note that although the applicant is claiming to have been tortured for many days, this claimed treatment did not stop him from flying to Australia on 1 February 2012. I also find it totally implausible that the applicant would go to the Indonesian authorities for assistance only to be told that they wanted to put him in jail and then did not jail him. I also consider the applicant’s claim that the Chinese even told me that all Chinese Indonesian should be treated in this way to be totally implausible.

   The applicant has not travelled to Australia before, nor does he claim to know anyone here. I therefore would have expected him to have sought Departmental assistance at the first available opportunity. Instead, he completed his passenger card indicating that he would be in Australia for 10 days even though his visa was valid for a month. The applicant did not contact the Department at any stage before he submitted his protection visa application the day before his visa expired.

   In considering the applicant’s case, I have taken into consideration that the applicant has had stable employment and accommodation up until the time he travelled to Australia. I have considered the vagueness of his claims and his failure to attend an interview to indicate that he is not a witness of truth and I therefore reject all claims as false. I also note that the applicant has travelled to Victoria, New South Wales and is now in Queensland. It is my view, that it is more likely that the applicant has submitted an application for protection visa in order to delay leaving Australia rather than fearing persecution or serious harm in Indonesia.”

10. The delegate therefore concluded that the Applicant was not telling the truth and as a result the delegate entirely rejected the Applicant’s claims.

11. In essence, the basis for the delegate’s refusal to grant a protection visa to the Applicant was that the Applicant was not a person to whom Australia had protection obligations under the 1951 Refugee’s Convention.  Indeed the delegate stated that they were:

    “not satisfied that Australia has protection obligations to the Applicant…under the 1951 Refugee’s Convention as amended by the 1967 Refugee’s Protocol.  As a result, the applicant does not meet the criteria of a Protection visa under paragraph 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations”.

12. Further, the delegate decided that the Applicant also failed to meet the criterion for a Protection visa – having regard to the complementary protection provisions contained in the Migration Act 1958. 

13. The Applicant lodged an Application for a review of the delegate’s decision with the Refugee Review Tribunal on 6 June 2012. 

14. On 14 September 2012 the Applicant appeared by video link before the Tribunal.  The Applicant was present in Brisbane.  The Tribunal sat in Sydney. 

15. Indeed there is a letter from the Tribunal to the Applicant dated 1 August 2012 – inviting the Applicant to appear before the Tribunal to “give evidence and present arguments relating to the issues arising in your case”.

16. As noted, the hearing went ahead on 14 September 2012 with the Applicant appearing by video link.

17. There is no transcript in evidence of the Tribunal hearing.  If the Applicant had so wished – he could have filed a transcript of the Tribunal hearing in these proceedings.  He has not done so.  The only evidence before the Court as to what occurred at the Tribunal hearing is therefore the Tribunal’s decision which appears in the Court Book from page 80.

18. In the decision of the Tribunal (page 86 Court Book) it is noted that the Applicant told the Tribunal at the hearing, inter alia:

    “…that he is now 30 years old and has never married. His parents and younger sibling live in Brastagi in northern Sumatra, about 2 hours away from Medan. After leaving high school (the Applicant) worked as a salesman in Brastagi until coming to Australia.”

19. The Applicant also told the Tribunal (paragraphs 30-32 on page 86 of the Court Book – the Tribunal’s decision) that when he and the others were kidnapped – they were held for four or five days.  He said that during this period they were beaten up and tortured.  Further, he told the Tribunal that after he escaped – he hid at a friend’s place for about four or five days.

20. The only country information available in the English language (as required) is the newspaper article referred to from the Jakarta Post.  That article makes it clear that an incident occurred on 27 January 2012.  I note paragraph 37 of the Tribunal’s decision where it states, inter alia:-

    “The Tribunal put to (the Applicant) that his account was inconsistent with the information because, according to his passport, he left Indonesia on 30 January 2012. If the incident occurred on 27 January 2012 (the Applicant) could not have spent four or five days captive as well as another four or five days hiding at a friend’s place.”

21. The Applicant’s credibility was clearly in issue. This was plainly put to the Applicant at the Tribunal hearing. I agree with the submission made by the Minister in writing that there was no breach of section 425(1) of the Migration Act 1958 – SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33]-[35].

22. On 20 September 2012 the Tribunal sent a letter to the Applicant.  That letter stated, inter alia:-

    “I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa.

    The purpose of this letter is to specifically request your comments and/or response in writing to certain information discussed generally at the review hearing with you. This is because, in conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.

    Please note that the Tribunal has not made up its mind about the information.

    The particulars of the information are:

    News report from the Jakarta Post dated 28 January 2012/travel records

    ·The following is a report from the Jakarta Post dated 28 January 2012:

    Medan – A protest against the relocation of Raudhatul Islam Mosque by a housing businessman in Medan, North Sumatra, turned wild on Friday.

    Chaos broke out when a collective group from various Muslim organizations marched on Emerald Garden Hotel after Friday prayers to ask for accountability from PT Jatimasindo for relocating the mosque. The Jatimasindo businessman was believed to be the owner of the hotel.

    Disappointed with not being able to meet with the Jatimasindo owner, the protestors burned used tires in front of the hotel’s lobby.

    The melee restricted hotel guests from entering the hotel compound. Police officers, assisted by security guards, tried to put out the fire, but were prevented by protestors in a confrontation that resulted in a shoving match.

    Muslim People’s Forum chairman Indra Suheri said that the protestors were disappointed by Jatimasindo management’s refusal to meet protestors.

    “The mosque was built on charitable land so that the building cannot be compensated in line with Law No. 41/2004,” Indra said, adding that the demolition of the mosque was to make way for the construction of a housing complex and a shopping mall.

    North Sumatra Office of Religious Affairs head Abdul Rahim refused to be interviewed by reporters over the protest. “It will be better next time, Bapak [Abdul Rahim] is aware now,” said Khoiruddin, a member of Abdul Rahim’s staff.

    ·Your Indonesian passport has a stamp indicating that you departed Indonesia on 30 January 2012.

    This information is relevant to the review because you gave evidence indicating that you were in this hotel at the time. You claim that you used to socialise at the hotel on Saturdays and Sundays. You claim that during the protest, some protestors entered the hotel and kidnapped you and held you for four to five days. You also indicated that after being released you spent another four or five days at a friend’s place before coming to Australia.

    The news report indicates that the protest outside the hotel occurred on Friday 27 January 2012. The tribunal was unable to locate any information that there other protests at this hotel prior to this date.

    Your passport indicates that you left Indonesia on 30 January 2012.

    Your evidence about your kidnapping appears to be inconsistent with the news report and details on your passport. The news report gives no detail about the hotel itself being breached by the protestors. The news report indicates that the protest occurred on a Friday, not on a Saturday or Sunday as you suggested. At any rate you left Indonesia three days after the incident at the hotel. However you also claim that you were kidnapped for four to give days and spent a further four to five days at a friend’s place before leaving Indonesia. This appears irreconcilable with your travel movements.

    This could lead the tribunal to infer that that your evidence concerning the kidnapping is not credible and that you in fact were never kidnapped as claimed.

    It may lead the Tribunal to find that you are not a credible witness and that Tribunal may not accept your claims.

    If the Tribunal does not accept your claims and is not satisfied that you have a well-founded fear of persecution, or that there are substantial grounds for believing that there is a real risk you will suffer significant harm if returned to another country, you will not satisfy the criteria for grant of a protection visa and the Tribunal must affirm the decision which is under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received at the Tribunal by 15 October 2012. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 15 October 212, you may ask the Tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 15 October 2012 and you must state the reason why the extension of time is required.

    The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information.

    If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

    Section 424A(1) of the Act states 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 part of the reason, for affirming the decision that is under review; and

    (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c) invite the applicant to comment on or respond to it.”

    I note the exception to section 424A(1) contained in section 424A(3)(a). That subsection states:-

    “(3) This section does not apply to information:

    (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member…”

    The Tribunal was not required to invite the Applicant to comment on the Jakarta Post information because such information comes within the section 424A(3)(a) exception.

1. In addition, the details from the passport of the Applicant constitute an exception within the following subsection:-

   “Section 424A(3)(ba) – this section does not apply to information…that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department…”

2. I also note the decision of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609. At paragraph 18 the High Court stated:-

   “[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

   … does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…

   If the contrary were true, s424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

   It can therefore be seen that the term “information” within section 424A does not include the existence of doubts held by the Tribunal. Further – the term “information” does not include “inconsistencies” in the evidence of the Applicant. Furthermore “information” in section 424A does not include the “absence of evidence”.

3. It is apparent that in this particular case “out of an abundance of caution or concern for fairness” the Tribunal sent the letter of 20 September 2012 in the terms stated above.  The words included in quotation marks in the preceding sentence are taken directly from a decision of the Full Court of the Federal Court of Australia in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at paragraph 30. The decision in SZGIY is therefore authority for the proposition that the Tribunal – in sending the letter of 20 September 2012 in the terms outlined – had not committed any error.

4. The Applicant responded to the Tribunal’s letter of 20 September 2012. The Applicant’s response is contained in a letter dated 8 October 2012 – received by the Refugee Review Tribunal on 12 October 2012. That letter is contained at page 78 of the Court Book. As required by section 424A – the Applicant’s response which had been received (as noted) on 12 October 2012. In this regard the requirements of section 424A were therefore met by the Tribunal.

5. The Tribunal handed down its decision on 18 October 2012 and by that decision the Tribunal affirmed the delegate’s decision – refusing to grant a Protection visa to the Applicant.  The Tribunal made various findings of fact.  In particular the Tribunal found that the Applicant’s evidence and claims were not credible.  The Tribunal did not believe the Applicant’s version or his claims.  There is no doubt that the findings of fact made by the Tribunal were open to it on the evidence (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). In particular, the Tribunal did not accept that the Applicant had been kidnapped or tortured in connection with any sort of demonstration. The Tribunal concluded that the Applicant did not have a “well-founded fear of persecution” as a result of those issues. Further, the Tribunal concluded that the Applicant did not have a “well-founded fear of persecution” as a result of his race – namely Chinese-Indonesian.

6. The factual findings made by the Tribunal were based on the evidence and this Court is not able to conduct a merits review in respect of the decision of the Tribunal.  In this regard I note what was said by the High Court in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

7. The Tribunal made further findings of fact in concluding that the Applicant did not come within the terms of section 36(2)(aa) of the Act. That subsection provides:-

   “36 Protection visas

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

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa) a non-citizen in Australia (other than a non-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; or

   (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa; or

   (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i) is mentioned in paragraph (aa); and

   (ii) holds a protection visa.”

   The Tribunal therefore concluded that there were not “substantial grounds for believing that, as a necessary and foreseeable consequence of (the Applicant) being removed from Australia to (Indonesia), there is a real risk that (the Applicant) will suffer significant harm”.

8. Section 36(2A) defines “significant harm” as follows:

   “36. Protection visas

   (2A) A non-citizen will suffer significant harm if:

   (a) the non-citizen will be arbitrarily deprived of his or her life; or

   (b) the death penalty will be carried out on the non-citizen; or

   (c) the non-citizen will be subjected torture; or

   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e) the non-citizen will be subjected to degrading treatment or punishment.”

9. On 20 November 2012 the Applicant filed an Application for judicial review in this Court.  His Honour Judge Burnett made an order on 30 January 2013 permitting the Applicant to file and serve an Amended Application or any affidavit of evidence by 20 February 2013.  The Applicant has not filed any Amended Application and nor has the Applicant filed any affidavit of evidence.

10. The Application for judicial review that was filed on 20 November 2012 states as follows:-

    “Grounds of application

    1. The Refugee Review Tribunal failed to notify me part of the reasons for affirming decision.

    2. The Tribunal failed to consider my application according to Migration Act 1958.

    3. The Tribunal made wrong tests in making decision.”

11. One 3 December 2012 the First Respondent filed a Response stating:-

    “The first respondent relies upon the following grounds and particulars in defence of the application:

    1. The application for judicial review does not provide any particulars of any legal ground of review.

    2. The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 18 October 2012.”

12. As to ground 1 of the Applicant’s Application – that the “Refugee Review Tribunal failed to notify me part of the reasons for affirming decision” – there is no evidence or, indeed, any submission put forward, to support such a ground. Clearly, the Tribunal did record its reasons and those reasons were forwarded in writing to the Applicant. In that respect the Tribunal complied with sections 430 and 430A of the Act. The Applicant’s first ground for review cannot possibly succeed.

13. As to ground 2 contained in the Application for review namely that – “the Tribunal failed to consider my Application according to Migration Act 1958” – there is no evidence and nor is there any submission made by the Applicant by which it could possibly be said that the Tribunal has not complied with its obligations pursuant to the Act. In particular I have made reference in these Reasons for Judgment to the fact that the obligations imposed upon the Refugee Review Tribunal by sections 424A and 425 of the Act have, in all respects, been complied with. The Applicant failed to particularise this ground.

14. Accordingly, for the reasons that I have stated the second ground for review relied upon by the Applicant must fail.

15. In relation to the third ground for review that, “the Tribunal made wrong tests in making the decision”.  Once again the Applicant has completely failed to provide any particulars as to the so called “wrong tests”.  The failure to provide particulars is fatal to this ground.

16. The Tribunal made various findings of fact to which I have referred to.  The findings of fact made by the Tribunal were open to it on the evidence.  The High Court pointed out in The Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 281-282 that the Tribunal is not required to accept the Applicant’s claims at face value.

17. Section 65 of the Act states:-

    “65 Decision to grant or refuse to grant visa

    (1) After considering a valid application for a visa, the Minister:

    (a) if satisfied that:

    (i) the health criteria for it (if any) have been satisfied; and

    (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv) any amount of visa application charge payable in relation to the application has been paid’

    is to grant the visa; or

    (b) if not so satisfied, is to refuse to grant the visa.

    (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”

    In particular, of relevance in this case, is the fact that the Tribunal did not make a positive finding that it was “satisfied” as that term is used in section 65 of the Act. Accordingly, pursuant to section 65(1)(b) the Application for a visa was refused. In this regard I also note the comments made by the Full Court of the Federal Court of Australia in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208.

Conclusion

1. I have come to the conclusion that the Applicant has not demonstrated any jurisdictional error affecting the decision of the Refugee Review Tribunal.   

2. The Application should be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  8 October 2013