BZH15 v Minister for Immigration
[2017] FCCA 2054
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZH15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2054 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal properly assessed and weighed the evidence before it contained in two letters provided by the Applicant containing allegedly corroborative material – whether the Administrative Appeals Tribunal failed to consider those letters in assessing the Applicant’s credibility – whether the Administrative Appeals Tribunal erred in failing to make an inquiry of the author of the letters where the telephone contact details were provided – whether such an inquiry was obvious and about a critical fact the existence of which could be easily ascertained – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Abebe v Commonwealth (1990) 197 CLR 510 |
| First Applicant: | BZH15 |
| Second Applicant: | BZI15 |
| Third Applicant: | BZJ15 |
| Fourth Applicant: | BZK15 |
| Fifth Applicant: | BZL15 |
| Sixth Applicant: | BZM15 |
| Seventh Applicant: | BZN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2661 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 29 August 2017 |
| Date of Last Submission: | 29 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Theresa Baw |
| Solicitor for the Applicant: | Sarom Solicitors |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitor for the Respondents: | Mills Oakley Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2661 of 2015
| BZH15 |
First Applicant
| BZI15 |
Second Applicant
| BZJ15 |
Third Applicant
| BZK15 |
Fourth Applicant
| BZL15 |
Fifth Applicant
| BZM15 |
Sixth Applicant
| BZN15 |
Seventh Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
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 September 2015 (“the Tribunal”).
The applicants claim to be citizens of Fiji who fear harm from the Military Regime in Fiji. The first applicant (“the Applicant”) is the primary applicant. The second, third, fourth, fifth, sixth and seventh named applicants are members of the same family unit whose claims are dependent upon those of the Applicant.
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
The Applicant arrived in Australia on 24 November 2013 having departed legally from Fiji on a passport issued in his own name and a Visitor’s visa issued on 8 November 2013.
On 12 February 2014, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 11 August 2014, the Delegate refused the applicants’ application for a protection visa.
On 1 September 2014, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 September 2015, the Tribunal handed down its decision affirming the decision of the Delegate to refuse the applicants’ Protection visas.
On 29 September 2015, the applicants 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 (Class XA) 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).
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated:
a)He was physically harmed by the Fijian regime because he was a strong supporter of the Soqosoqo Duavata ni Lewenivuana Party (“SDL”) and actively supported his nephew who was the founding General Secretary of the SDL and campaign director during the 2006 elections.
b)He was involved with the anti-coup group that stood beside former Fijian Prime Minister Laisenia Qarase during his court case on corruption charges.
c)He was physically abused by soldiers on 14 December 2006 after he was stopped at a roadblock, confirmed he was related to Jale Baba (the founding Secretary of the SDL) and expressed dissatisfaction about the military’s actions and his support of the SDL.
d)He was taken and mistreated on a second occasion in December 2006, his brother and nephew were also taken and he was watched all the time.
e)In August 2012 he was taken to a military camp and beaten after he made inflammatory remarks at court following Mr Qarase’s sentencing.
f)He planned to attend a protest against a visit by Mr Frank Bainimarama and met with Mr Qarase in Griffith. The Applicant’s brother is President of the Fijian Lau Community Group in Griffith. The Applicant claimed he was known to the Fijian regime and his activities in Griffith were monitored.
The Delegate’s decision
On 22 July 2014, both the Applicant and the second applicant attended an interview with the Delegate. The interview was conducted with the assistance of a Fijian interpreter.
The Delegate accepted that the Applicant has four dependent children and a dependant grandchild in Australia who have lodged protection visas with this application.
The Delegate accepted as a finding of fact that the Applicant was a supporter of the SDL. The Delegate also accepted that the Applicant was detained, questioned and physically abused by the Fijian military on two occasions in 2006 in relation to his nephew, Jale Baba.
The Delegate noted that the Applicant is a supporter of former Mr Qarase. The Delegate also noted that the Applicant attended the high court as a member of a group of over three hundred supporters of Mr Qarase on 3 August 2012.
The Delegate did not accept that the Applicant was permitted to enter the sentencing of Mr Qarase in the high court room in Suva on 3 August 2012. The Delegate did not accept that the Applicant singularly stood in the high court room at the sentencing Mr Qarase and verbally redressed the high court magistrate over his sentencing of Mr Qarase.
The Delegate also did not accept that the Applicant was detained, questioned and assaulted by the Fijian Military on 5 August 2012 because of his action in the high court. Nor that he was under surveillance by the Fijian Military from August 2012 until November 2013. The Delegate did not accept that the Applicant has a political profile such that he would be of interest to the Fijian Military regime if he returns to Fiji.
The Delegate was satisfied that if the Applicant had serious concerns regarding his safety upon return to Fiji, he would have sought to apply for protection upon arrival in Australia.
Accordingly, the Delegate found that the Applicant would not face serious harm upon his return to Fiji in the foreseeable future for a Refugees Convention reason. The delegate was not satisfied that the Applicant’s fear was well-founded.
On 11 August 2014, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Tribunal’s review and decision
On 29 September 2015, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application including a statutory declaration, two letters in Fijian written by the Applicant’s former neighbour, a number of internet reports and articles as well as an address of Mr Bainimarama concerning removal of Public Emergency Regulations.
On 13 May 2015, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 14 August 2015 to give oral evidence and present arguments. All of the applicants except for the fourth named applicant attended that hearing.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
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. The Tribunal put to the Applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.
The Tribunal had “significant concerns with the credibility” of the Applicant’s evidence about his claims of detention and harm by military personnel, the monitoring of the Applicant by military and other authorities and that the Applicant made inflammatory statements during the sentencing of Mr Qarase. The Tribunal identified six matters that contributed to its adverse assessment of the Applicant’s credibility:
1) The Applicant failed to include key claims in his original Protection visa application. He failed to include reference to a second occasion on which he was detained in December 2006 and that he was detained and harmed in 2012 after the court hearing sentencing Mr Qarase.
2) The Applicant’s evidence provided to the Delegate concerning the circumstances and number of occasions on which he was detained, was considered to be “uncertain, shifting and inconsistent with claims elsewhere.” The Tribunal noted that the claim that the Applicant was taken from his home whilst he was asleep was inconsistent with the Applicant’s evidence previously in the hearing recounting the circumstances of his detention where he made no mention of being taken from his home while asleep. The Tribunal noted that the consequences of relying on this information would be to question the credibility of the Applicant’s account of his detentions, and more generally.
3) The Applicant provided directly inconsistent evidence at the departmental interview and to the Tribunal in respect of the Applicant’s presence inside or outside of the courthouse when he stood up and criticised the verdict at Mr Qarase’s sentencing.
4) There were significant discrepancies between the Applicant’s evidence and that of his wife the Second Applicant in terms of how many times the Applicant was taken to an army camp and whether military ever visited and took the Applicant from his home.
5) The Applicant waited seven years to come to Australia following the two significant incidents that he claims happened in 2006 as well as the monitoring activities carried out by the military and other authorities. The Applicant and members of his family (the Second, Third, Fourth, Fifth, Sixth and Seventh Applicants) made a combined 15 visits to Australia between 2007 and 2013. This undermines the Applicant’s claimed fear of serious or significant harm, and
6) The Applicant’s ability to maintain employment with a government organisation throughout the period of his claimed difficulties is not consistent with his claims of political connections, outspokenness and his being monitored.
Based on these six areas of concern, the Tribunal found that the Applicant’s initial claims presented significant omissions and fundamental issues that go to the credibility and plausibility of what was claimed.
The Applicant’s evidence caused the Tribunal to consider whether the Applicant had fabricated his core claims. The Tribunal considered him not to be a truthful witness.
The Tribunal was not satisfied of “any of the any of the Applicant’s claims.” The Tribunal did not accept the Applicant’s explanation that the difficulties in his evidence were attributable to his claimed memory loss. The Tribunal expressly considered the Applicant’s supporting documents but found that these did not overcome its credibility concerns outlined with the evidence of the Applicant.
The Tribunal was not satisfied that there had been any past targeting of the Applicant by the Fijian regime, or harm to the Applicant, or his family, that created a real chance of serious harm to any of the applicants in the reasonably foreseeable future should they return to Fiji. The Tribunal found that the Applicant was an ordinary member and supporter of the SDL and that his political involvement in Australia was of a low level.
The Tribunal considered it entirely speculative that the Applicant would have been monitored by Fijian authorities when he visited Mr Qarase in Australia. The Tribunal was not satisfied that even if Fijian authorities were aware that the Applicant had met with Mr Qarase on one occasion in Australia that this would create a real chance of the applicants facing serious harm on return to Fiji.
On the basis of independent information (DFAT reports from 2013 and 2015) the Tribunal found that an ordinary supporter of the SDL would not be at risk of harm in Fiji both during and after the period of the military regime.
The Tribunal did not accept that the Applicant was at any increased risk of harm because the Applicant’s nephew was an official of the SDL or the involvement of the Applicant’s brother in a Fiji Community group in Griffith.
The Tribunal did not accept that the Applicant faced a real chance of harm as a result of his asylum claim in Australia or having lived here for a period.
Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the Applicant would suffer harm for a Convention related reason were he to return to Fiji, that the Applicant did not have a well-founded fear of persecution in Fiji and for this reason the Applicant was not a person to whom Australia owed protection obligations.
The Tribunal also considered whether the Applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone in Fiji had threatened to harm the Applicant. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, Fiji, there is a real risk that the Applicant would suffer significant harm.
Accordingly, having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court by Ms Theresa Baw, of counsel.
On 5 November 2015, the Applicant attended a directions hearing before a registrar of this Court. The applicants were 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. On that occasion the Applicant was provided with the contact details of legal service providers and translating and interpreting services.
At the commencement of the hearing today, by consent, leave was granted to the applicants to file in Court and rely upon a Further Amended Application. The grounds of that Further Amended Application are as follows:
“1. The Tribunal's approach and reasoning was irrational or illogical when it made adverse credibility findings against the first applicant and those findings formed a basis for placing little weight on documents, however those documentary materials themselves should have been taken into account in assessing credibility.
Particulars
Two letters from the applicant's neighbour in Fiji dated July 2015, informing him that the Fijian military were looking for the applicant and his family.
2. The Tribunal fell into jurisdictional error when it failed to make an inquiry with the author of the two letters as to whether the Fijian authorities were looking for the applicant and his family.
Particulars
The telephone contact details of the author of the letters were before the Tribunal. It was an obvious inquiry about a critical fact the existence of which could be easily ascertained.”
Ground 1
Ground 1 contends that the Tribunal’s approach and reasoning was irrational or illogical when it failed properly to assess and weigh the evidence contained in two letters provided by the Applicant in support of his application. The Tribunal referred to those letters as follows:
“30. Two original letters were brought to the Tribunal hearing. Translations were provided following the hearing. The letters are from Lomani Tau'aga who is .indicated to be a neighbour of the applicant. The letters are dated 13 July 2015 and 20 July 2015, respectively. The first letter indicates that soldiers have been looking for the applicant. The second letter indicates that four soldiers came in a military vehicle asking for the whereabouts of the applicant and was told that he was in Australia. It was indicated that this is the second time there has been a visit.”
That summary by the Tribunal is an accurate summary of the content of those letters.
Ultimately, the Tribunal made the following findings in respect of the two letters:
“81. In terms of the two letters that were provided by the applicant's neighbour attesting to Fijian authorities looking for the applicant and his family, the Tribunal gives these documents little weight. It does so in considering the significant credibility concerns outlined with the evidence of the applicant. It does not consider that the applicant is trustworthy. As noted to the applicant in the hearing, it would have been very easy for the applicant to have requested his neighbours to write and send these documents. The applicant said that these letters were written without any input by the applicant. The letters do not ameliorate the significant credibility concerns outlined.”
Those findings in respect of the letters were made in the context of detailed and reasoned adverse credibility findings which were summarised by the Tribunal as follows:
“73. The six areas of concern outline significant omissions in the applicant's initial claims, fundamental inconsistencies, as well as other issues, that go to the credibility and plausibility of what is claimed. The extent and nature of the difficulties with the applicant's evidence cause the Tribunal to consider that the applicant has fabricated his core claims. The Tribunal does not consider that the applicant has been a truthful witnesses in relation to claims of him being detained and physically harmed by the Fiji authorities, or the applicant making an outspoken statement during the sentencing of Qarase.”
Counsel for the applicants submitted that in accordance with authorities (in particular Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; SZVHO v Minister for Immigration and Border Protection [2016] FCA 149; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD), the Tribunal was required to assess and weigh the evidence before it as disclosed in the letters, and that it failed do so.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the totality of the evidence before it and summarised the entirety of the allegedly corroborative material disclosed in the letters. In the circumstances, it is not the case that the Tribunal failed to consider the allegedly corroborative material in the letters or failed to have regard to it.
The Tribunal clearly assessed the value of the content of the letters and considered their effect in the light of the view it had formed about the credibility of the Applicant (see Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [33]).
A fair reading to the Tribunal’s decision record makes clear that the Tribunal did not disregard the allegedly corroborative material in the letters. Rather, having reached the tentative conclusion that the Applicant’s claims of harm in Fiji were fabricated, the Tribunal’s assessment of the nature, content and quality of the content of the letters was such that it determined to give the letters little weight. The Tribunal found that the contents of the letters did not ameliorate the significant credibility concerns that the Tribunal had outlined in some detail. The Tribunal did not refuse to consider the letters. The Tribunal weighed them in the balance after making its credit findings as it was entitled to do (see Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [33], [37], and [38]; SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 at [34]-[44]).
In the circumstances, the Tribunal did not act irrationally or fall into jurisdictional error by first making an assessment of the Applicant’s credit and then giving attention to the corroborative evidence.
Unlike in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD, the Tribunal did not refuse to consider the letters but considered them in light of its credit findings and gave them little weight.
I accept the submission of counsel for the first respondent that the Tribunal did not find that the Applicant had engaged in a conspiracy or fraudulent arrangement, as suggested in the Applicant’s submissions. As stated above, the Tribunal considered the letters, assessed their value and determined to give them little weight.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. The Tribunal’s adverse credibility findings did not involve a failure to afford procedural fairness, findings without logical or probative bases, or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal erred in failing to inquire of the author of the letters as to whether the Fijian authorities were looking for the Applicant and his family in circumstances where the telephone contact details were before the Tribunal. Counsel for the Applicant contended that it was an obvious enquiry about a critical fact, the existence of which could be easily ascertained.
Counsel for the Applicant referred to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (“SZIAI”) where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated as follows at [26]:
“The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.”
In the case before this Court there is no evidence to suggest that the Tribunal was requested by the Applicant to make those enquiries.
If the neighbour asserted that he was the author and his letters were true, this would add nothing to the evidence before the Tribunal. If the neighbour said that the letters were requested by the Applicant in the terms they were sent, that would not have been of assistance to the Applicant.
A telephone call to the author would not have confirmed further the identity of the author of the content of the letters. The Tribunal expressed its concerns about the case with which the Applicant may have requested those letters in the context of the Tribunal’s findings that the Applicant had fabricated his core claims and was not a truthful witness.
It is otherwise unclear what possible information the inquiry could be directed towards. I do not accept the Applicant’s submission that positive contact with the neighbour could have put beyond any doubt whether there was any fraudulent collusion between the Applicant and the neighbour. As in SZIAI, authorship of the letters in the context of their content would not have been able to be determined by calls placed to the telephone number.
It was for the Applicant to provide whatever evidence he wished in support of his claims (see Abebe v Commonwealth (1990) 197 CLR 510 at [87] per Gummow and Hayne JJ).
In the circumstances, there was no obligation on the Tribunal to make further enquiries in relation to those letters and, in the circumstances, it was not unreasonable for it to fail to do so.
Accordingly, Ground 2 is not made out.
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 identified independent country information to which it had regard. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it.
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 seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 29 August 2017
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