Cey17 v Minister for Immigration
[2018] FCCA 2570
•4 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2570 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A, 424AA |
| Cases cited: Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 |
| Applicant: | CEY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1126 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2018 |
REPRESENTATION
| Solicitor acting as Counsel for the Applicant: | Mr Markwell |
| Solicitors for the Applicant: | Luat Lawyers |
| Solicitor acting as Counsel for the First Respondent: | Ms He |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1126 of 2017
| CEY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review in respect of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 May 2017 by which the Tribunal affirmed a decision of the delegate of the First Respondent (‘the delegate’) dated 8 February 2016 to refuse the application for a protection (Class XA) (subclass 866) visa (‘the visa’).
The initiating application was amended by the Applicant some 12 months after the filing of that application and on 31 May 2018. At the hearing this day the Applicant sought to rely upon a further amended application. The Court granted leave for the Applicant to rely upon that further amended application. The grounds of review now total three in number.
The First Respondent did not have an opportunity to make written submissions in respect of the additional ground and had opposed the application for the Applicant to rely upon the further amended application. However, the First Respondent was in a position to make oral submissions in respect of that additional ground, and did so in the course of the proceedings this morning.
The First Respondent seeks dismissal of the application and that a costs order follow.
The Court has before it additionally the evidence as contained in the Court Book which was filed on 27 November 2017, and the evidence as contained in the affidavit of Mr Luke Luat Thien Tran affirmed 31 May 2018. Mr Tran is the solicitor for the Applicant in the proceedings. Mr Tran annexed to his affidavit, marked with the letters “LK-1” a true copy of the transcript of the Tribunal hearing dated 27 April 2017. The Court also has before it the submissions of the Applicant and First Respondent, both of these being filed on 27 August 2018, and relied upon by the parties.
The grounds of the further amended application are as follows:-
“1. The Second Respondent has not complied with Section 422B(3) of the Migration Act 1958 (“The Act”) and accordingly has not acted in a way that is fair and just.
Particular
The Second Respondent has requested that the Applicant comment on Country Information provided by the Second Respondent (see attached Transcript of Proceedings from line 11 on page 19 to line 11 on page 21). There were no breaks or opportunities provided by the Second Respondent for the Applicant to comment. There is too much information for a non-English speaking Applicant to properly absorb, understand and orally respond in a proper, coherent and appropriate manner. The Second Respondent has not acted in a way that is fair and just.
2. The Second Respondent has not complied with Section 424AA(b)(iii) of the Act and ‘advise the applicant that he or she may seek additional time to comment on or respond to the information’.
Particular
The Second Respondent has no discretion and must provide the Applicant with the benefit of the sub-section namely, convey to the Applicant at the Hearing that he/she may request further time to respond to the information provided. There is no indication in the Transcript of Proceedings that the Second Respondent has complied with section 424AA(b)(iii) of the Act.
3. The Second Respondent did not accept any of the evidence that the Applicant had provided at the Hearing. The Second Respondent has not complied with Section 422(B)(3) of the Act and acted in a way that is fair and just.
Particular
There is no evidence provided by the Second Respondent and/or available in the Court Book that demonstrates that the Applicant is not telling the truth and therefore not credible. Accordingly the Applicant is truthful and credible and is therefore able to make a claim for Complimentary [sic] Protection under section 36(2)(aa) of the Act.”
The Court notes that the grounds of application also referred to an alleged ground 4 which was namely:-
“4. The Applicant refers to the Transcript of Proceedings marked with the letters “LK-1” and annexed to the Applicant Lawyer’s Affidavit dated 31 May 2018.”
This is clearly not a ground of judicial review as conceded by Counsel acting for the Applicant this day. It was inserted to draw the Court’s attention to the transcript which the Applicant asserts is supportive of the totality of the grounds of application.
Background
The Applicant is a citizen of Malaysia. He arrived in Australia on 3 April 2011 on a (subclass 976) (Electronic Travel Authority) visa. On 3 July 2011 the Applicant’s (subclass 976) visa ceased. The Applicant thereafter remained unlawfully in Australia until 22 July 2015, a period in excess of four years, when the Applicant lodged an application for the visa. On lodging that application the Applicant obtained an associated bridging visa.
The Applicant’s parents and brother who also reside in Australia have lodged their own separate applications for protection (Class XA) visas. The Applicant’s two younger sisters remain living in Malaysia with the Applicant’s grandparents.
Applicant’s Claims
The Applicant was born in Kedah State Malaysia on 6 December 1990. He stated in his protection visa application that he belonged to the Chinese ethnic group, that he was a Buddhist, and that he speaks, reads and writes Malaysian and English.
The Applicant’s protection claims included the following:-
a)the Applicant claimed when he was in high school his father’s business was set on fire by native Malays;
b)the Applicant claimed he was discriminated against at school as his family had conflicts as “they said we use their land, we should pay them”;
c)the Applicant claimed he was beaten, bullied and money was taken from him;
d)the Applicant claimed when he left school he worked for a Malay Chinese boss to repair and service cars. The Applicant claimed a group of native Malays came to his house and took money from him as they knew he had an income. The Applicant claimed “they said they would set his house on fire and kill him if he didn’t give them money”;
e)the Applicant claimed if he returns to Malaysia he will suffer discrimination from native Malays and they will harm and mistreat him; and
f)the Applicant claimed he and his parents made many reports to the police but they did not help.
The Tribunal in its Statement of Decision and Reasons (‘the Decision Record’) dated 1 May 2017 noted that the Applicant had also claimed that his parents fled to Australia to avoid being “harmed or killed” and that he and his brother were then cared for in Malaysia by his grandparents. The Applicant also claimed he was too young to relocate within Malaysia by himself and felt he would suffer discrimination elsewhere in Malaysia. As a result, the Applicant left Malaysia to join his parents in Australia. The Applicant claimed if he was forced to return to Malaysia he would suffer more discrimination, harm and mistreatment from native Malay people which would, “harm me both on my mind and body.”
On 8 February 2016 a delegate made a decision to refuse to grant the Applicant the visa, the delegate finding the Applicant had “provided vague information with minimal detail and no evidence to support his claims for protection.” The delegate also drew adverse inferences about the Applicant’s subjective fear of harm, given his delay of more than four years in applying for protection after arriving in Australia. Additionally, the delegate relied on independent country information about law enforcement and the judicial system in Malaysia, to find the Applicant would receive effective protection from the Malaysian authorities should he require it. The delegate’s decision quoted extensively from the Department of Foreign Affairs and Trade (‘DFAT’) country report Malaysia, 3 December 2014 and in particular in relation to Chinese Malaysians. The delegate concluded the Applicant was not owed protection obligations under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
On 4 March 2016 the Applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal
On 31 March 2017 the Applicant was invited to attend a hearing before the Tribunal scheduled for 27 April 2017. The Applicant appeared before the Tribunal on that date to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Applicant did not submit any further documents to the Tribunal in support of his application.
As indicated in the Tribunal decision, commencing at paragraph 13 of the Decision Record, the Applicant gave oral evidence at the hearing that he had paid a person $1500 to prepare his protection visa application and that this person had “missed out a bit of information”. When the Tribunal asked why the Applicant had not included additional claims subsequently made by him in his written statement, the Applicant repeatedly said the person who prepared his application had told him that what had been included “should be adequate”.
The Applicant claimed at the Tribunal hearing that his father had run a business and had a rented workshop. He said Malaysian government persons demanded his father give them money and threatened his father saying they would make trouble for him if he did not pay them.
As further set out in paragraph 13 of the Decision Record, the Applicant added that his written claim that his father’s workshop was set on fire should have been a claim that, “people threatened to set it on fire”.
The Applicant also said, as set out in paragraph 18 of the Decision Record, that he was bullied at school by the son of one of the Malaysian government people who demanded money from his father. He said the boy demanded money from him and when he said he had no money, the boy and his friends bullied the Applicant and pushed him. The Applicant said that after his brother graduated the Applicant changed schools for the final year of high school, and did not have any problems there as there were more Chinese students at his new school.
As set out in paragraph 19 of the Decision Record, the Applicant also said that after he graduated he worked in tile sales, repairs and floor tiling but his father’s debtors harassed him for money. He could not recall when people first came demanding money but the Applicant claimed they came regularly for about a year. He claimed they threatened him saying his father had to pay debts which were between RM 10,000 and RM 20,000 and that if he did not pay such debts they would damage his motorcycle. The Applicant said that he and his brother made some payments in repayment of the debt but that it was impossible for them to pay all the debt.
The Tribunal’s decision
The Tribunal’s findings and reasons are accurately and succinctly set out in the First Respondent’s submissions and I adopt paragraph 14 to paragraph 22 inclusive below:-
“14. The Tribunal accepted that the applicant was a national of Malaysia but found he was not a credible witness. Specifically, the Tribunal found the applicant's evidence was “vague and unconvincing”. It also found that even though he added a new claim and corrected a previous written claim at the hearing, his oral claims at the hearing were substantially different to his written claims. In particular, the Tribunal identified substantial differences in the applicant’s written and oral claims and put them to him for comment at the hearing, namely:
a. First, his Protection visa application made no mention of his father having debts with money lenders/ loan sharks and that the people who harassed the applicant were debt collectors, whereas his written statement indicated that his family had conflicts with “their community” and “they said we use their land we should pay them”.
b. Secondly, his Protection visa application stated the applicant was bullied and beaten by native Malay students in his class and they took money from him because his family had conflicts with their community but, at the Tribunal hearing, the applicant claimed that: he was bullied at school by the son of a Malaysian government employee who was seeking to extort bribes from his father and the boy's friends; he was not hit but was pushed; and he was fearful. The applicant also did not indicate in his application that he changed schools but at the hearing he said the bullying stopped when he changed schools in his last year of his schooling.
c. Thirdly, his application claimed that after he began working, Malays came to his home regularly to take money but at the hearing he said the people only ever came to his workplace.
d. Fourthly, his application claimed that he and his parents reported to the police “many times” but the police didn't help them, whereas at hearing the applicant indicated that he did not go to police because he was “too fearful” and was threatened that he would be harassed more if he did so.
15. The Tribunal put the identified differences to the applicant at the hearing and he said that he was told by the person assisting him with his application to keep it “simple”. The Tribunal found this did not explain why he included statements that were “simply incorrect” such as making police reports, when this never occurred. The Tribunal found that the applicant's explanation was “unconvincing” and did not explain why his written and oral evidence was “fundamentally different”.
16. The Tribunal also identified several concerns with the applicant’s oral evidence at the hearing about his father's alleged debt and the related harassment he experienced from debt collectors. For example:
a. The applicant could not recall when the debt collectors first came to his workplace or how much he repaid the debt collectors in total, other than he paid RM 200 “on occasions”.
b. The applicant confirmed that he had told his parents that he was being harassed by debt collectors but they told him to pay no attention to the debt collectors. The applicant did not know why his father had given him this advice.
c. The Tribunal found that despite fearing that the debt collectors would cause trouble such as “smashing his motorbike”, the applicant did not report their threats to the police as he was worried the police would do nothing and this would exacerbate the situation. The Tribunal queried this given that it was not his debt and it was not legal to threaten people and smash their property. The applicant did not respond.
d. When asked if his grandparents and sisters were threatened, the applicant initially claimed the debt collectors only ever threatened him at work and had not threatened his grandparents’ home or demanded that they repay his father's debt. However, when the applicant was questioned about what action the debt collectors took after he left Malaysia, he said they had harassed his grandparents, who told the debt collectors the applicant did not live there anymore. The Tribunal put to the applicant that this was different to the evidence he had previously given and that country information about the activities of Ah Long in Malaysia indicated they would continue to pursue family members to get the debt repaid. The Tribunal also queried why if his parents had been in Australia for ten years, they had not made arrangements to repay the debt so family members could return to Malaysia. The applicant replied that the debt was too large and could not be repaid.
e. The Tribunal asked why in all these circumstances the debt collectors had not done anything against family members who remained in Malaysia to get the debt repaid and the applicant then commented that he though an aunt may have been talking to them so they did not harass his sisters and grandparents. The Tribunal queried why the debt collectors would do that if the claimed debt was not being repaid but the applicant did not respond to this query.
17. The Tribunal found the applicant's evidence about the claimed family debt was “unconvincing”. It also found his evidence about why he paid debtors, contrary to his parent's advice, why he did not go to the police, how much he paid debt collectors and why they had not harassed or threatened other family members since he departed Malaysia over six years ago in April 2011 after only making small repayments for about a year over a four year period was “vague, inconsistent and implausible”. Accordingly, the Tribunal did not accept that his parents would have fled Malaysia “to avoid being harmed or killed” if they thought their children would be harmed by the debt collectors. It also did not accept that the debt collectors would not have sought to recover the outstanding debt from the applicant’s grandparents and sisters, who remained in Malaysia, if the debt remained outstanding.
18. The Tribunal also queried why the applicant had not applied for a Protection visa until July 2015, more than four years after his arrival in Australia. It also found his explanation for the delay (namely, his family did not know anything about seeking protection and was worried that if they made inquiries about their options, immigration officers might “get them” and return them to Malaysia) was “unconvincing”. The Tribunal found that someone who had overstayed their Visitor visa and feared for their safety would be “highly motivated” to make inquiries to see what options might be available to them to remain legally in Australia.
19. Based on its consideration of the applicant's evidence, the Tribunal found the applicant was not a credible witness and did not accept of his protection claims and did not accept there was a real chance that the applicant would suffer persecution amounting to serious harm from ethnic Malay people should he return to Malaysia now or in the foreseeable future.
20. In reaching this conclusion, the Tribunal had regard to a range of country information that was discussed with the applicant at the hearing. The country information indicated, amongst other things, that: Chinese Malaysians did not generally experience discrimination or violence on a regular basis; Buddhists were normally able to practice their religion freely and did not generally face official or societal discrimination; the Royal Malaysian Police (RMP) was considered to a professional and efficient police force, whose responses varied according to training, capacity and/or engagement in corruption; whilst corruption in the RMP was recognised as a concern, the government had established compliance units within the RMP and officers were subject to criminal and civil trial for misconduct; illegal money lending or loan sharking was an offence punishable by serious penalties; and whilst the practice of illegal money lending remained widespread in Malaysia, victims were publicly encouraged to come forward and make a report, and police operations targeting loan sharks were not uncommon.
21. Having considered the applicant’s claims individually and cumulatively in light of the country information, the Tribunal was not satisfied the applicant met the refugee criterion in s 36(2)(a) of the Act.
22. The Tribunal relied on its earlier findings that comprehensively rejected the applicant's factual claims for protection to also find he did not meet the complementary protection criterion ins 36(2)(aa) of the Act.”
Consideration
Ground 1 of the further amended application does not establish jurisdictional error in the decision of the Tribunal and cannot succeed. The Applicant’s reliance on s.422B(3) of the Act to establish jurisdictional error on the part of the Tribunal is, as submitted by the First Respondent, misconceived. Section 422B(3) of the Act requires the Tribunal to act in a way that is fair and just in applying Div.4 of Part 7 of the Act. The effect of s.422B of the Act is that Div.4 is an exhaustive statement of the requirements of procedural fairness and in exercising the powers and performing the duties described in Div.4 the Tribunal must act in a way that is fair and just.[1] Section 422B(3) of the Act does not create procedural requirement over and beyond what is expressly provided for in Div.4.
[1] Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404, 12.
As to the Applicant’s complaint concerning the putting of country information to the Applicant by the Tribunal, it is clear when looking to the relevant parts of the transcript, that at the commencement of the hearing the Tribunal said to the Applicant the following:-
“Tribunal member: Today I’ll be asking you a number of questions trying to get as clear a picture of your circumstances as I possibly can. I may also ask you to comment on information that I have from a range of independent sources about the situation in your country. After answering my questions, you’ll have an opportunity to raise any other matters you consider important to your claims. The proceedings of the tribunal are private and confidential. I will be taking notes to help me remember everything we’ve talked about today.
If at any time during the hearing you would like to have a break, please let me know. The hearing is being recorded, so please speak in a loud, clear voice. Copies of the recording can be made available to you at the end of the hearing, if you wish. Do you have any questions about anything I’ve said so far?”[2]
[2] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 3, 1-14.
Thereafter the Tribunal said to the Applicant:-
“Tribunal Member: I want to talk to you about some country information about Malaysia. So there’s quite a bit of information that I want to share with you and then I’ll give you the opportunity to comment on that information. If you want to make some notes, please feel free to do that or if you want to interrupt me because you have something in your mind that you want to get out then please feel free to do that.
So I want to talk to you about some information from the Australian Department of Foreign Affairs and Trade. So they have prepared a country information report on Malaysia, the most recent one is dated 19 July 2016, and officers from the department, as well as members in the tribunal who are considering protection visa cases, have to take into account the information that’s included in these reports.”[3]
[3] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 19, 11-24.
The Tribunal provided the referred to country information to the Applicant. That country information included matters pertaining to ethnic Chinese and Buddhist and whether they face discrimination or violence; internal relocation within Malaysia; the Royal Malaysian Police Force, in relation to which credible sources considered it to be a professional and effective police force; matters pertaining to the rule of law and legal procedure; and information concerning ‘loan sharks’. As to the issues surrounding ‘loan sharks’, the Tribunal noted that:-
“…there’s information indicating that loan sharking is an offence in Malaysia under section 5(2) of the Money Lenders Act and if prosecuted a person can be subject to a fine of between 20 and 100 thousand ringgits or imprisonment of up to five years and the tribunal has seen various press reports from 2013 through until April 2017 indicating both that there are public associations that offer advice on dealing with loan sharks and that the police have conducted major operations against loan sharks.”[4]
[4] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 20, 20-26.
The Tribunal then went on to indicate to the Applicant that:-
“…the reason why I’ve talked to you about the police and the law is because I think it indicates that there are legal avenues open. There is appropriate law about loan sharking and debt collectors. There’s evidence that the police do take action. There are penalties that apply and there’s evidence that there is a legal system and a judicial system that operates to address these issues as well as organisations such as the Malaysian Chinese Association and the Kuala Lumpur Consumer Safety Association where people can go for advice if they’re being harassed by debt collectors.”[5]
[5] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 21, 6-14
The Tribunal then asked, having canvassed the relevant country information, whether the Applicant had any comments he wanted to make on any of that information. The Applicant responded “No, I have nothing to say”.[6]
[6] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 21, 17
The Tribunal then again asked the Applicant if there was anything he wished to say, to clarify or add, before the hearing was concluded. The Applicant responded “I have nothing to add.”[7]
[7] Annexure “LK-1” of Affidavit of Luke Luat Thein Tran, page 21, 25.
The Tribunal member also confirmed with the Applicant (at the commencement of the proceedings) that if he had any difficulties understanding the interpreter, he should make that known. The Applicant did not do so.
Nowhere in the transcript is there evidence that the Applicant requested or sought a break or additional time to respond to the country information. Additionally, following the Tribunal hearing on 27 April 2017, and before the Tribunal made its decision on 1 May 2017, the Applicant did not convey to the Tribunal that he did not understand the country information put to him at the hearing, or request further time to address the information or provide additional information in response.
The First Respondent submits that there is no evidential basis to substantiate the bare assertion made by the Applicant in ground 1 that the Applicant was a “non-English speaking Applicant” and that the Applicant could not “properly absorb, understand and orally respond in a proper, coherent and appropriate manner” to the country information put to the Applicant by the Tribunal. The Court accepts that submission.
The Applicant indicated in his protection visa application that he spoke, read and wrote English. The Applicant however had an interpreter to assist him during the course of the Tribunal hearing. Nowhere in the transcript does it appear that the Applicant had any difficulty in communicating with the interpreter and in making clear to the Tribunal those matters which he wished to put before the Tribunal.
The Applicant had also provided the Tribunal with a copy of the delegate’s decision. The delegate’s decision is replete with country information which formed similar conclusions to that before the Tribunal and of which the Applicant had knowledge.
During the course of the hearing, the Tribunal put to the Applicant those matters which caused it concern and afforded him an opportunity to give evidence and present arguments on those credibility issues. The transcript reveals the Applicant demonstrated his understanding of the questions and information being put to him by the Tribunal, and he provided relevant responses to each of the issues raised.
The Applicant had been on notice of the substance of the country information put to him at the hearing before the Tribunal, as much of that was contained in the delegate’s decision. That country information went to not establishing his claims for protection.
Finally, there is nothing in Div.4 of Part 7 of the Act, as submitted by the First Respondent, that expressly required the Tribunal to provide the Applicant with “breaks or opportunities” when inviting him to comment on country information. There is nothing in the material before the Court that suggests that Applicant was not provided with a real and meaningful opportunity to give evidence and present arguments in support of his case.
Ground Two
Ground 2 was required to be responded to orally by the First Respondent, it being a new ground. This ground also does not disclose jurisdictional error. The claim is misconceived. Section 424A of the Act is relevant. That section is as follows:-
“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; 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.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) 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; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
Country information is information which is exempt. Information provided by the Applicant himself is also exempt and significant country information was contained in the delegate’s decision which had been provided to the Tribunal by the Applicant. Section 424AA(b)(iii) of the Act is not applicable in the circumstances of this case and with an application of s.424A of the Act.
Ground Three
Ground 3 does not establish jurisdictional error in the decision of the Tribunal and must also fail. This ground is an attempt to engage in impermissible merits review of the Tribunal’s factual findings about the Applicant’s credit and the credibility of his claims. That is not a matter for the Court.[8]
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The Tribunal’s discussion with the Applicant at the hearing as to the relevant country information which undermined the Applicant’s claims for protection, provided, as submitted by the First Respondent, a cogent and logical basis for the Tribunal’s adverse credibility findings and that adverse conclusion was a sound basis for the Tribunal to reject the Applicant’s factual claims for protection in their entirety.
The Tribunal was not obliged to uncritically accept the Applicant’s claims and evidence and did not need rebutting evidence before holding that the Applicant’s claims were not made out.[9]
[9] SZQWV & Anor v Minister for Immigration & Citizenship [2012] FCA 817, 23.
The Tribunal’s conclusion that the Applicant was not a credible witness was a conclusion open to the Tribunal on the basis of the evidence before it. The Tribunal noted that the Applicant’s claims of subjective fear of harm was undermined by his delay of four years in applying for protection after arriving in Australia. The Tribunal was entitled to take that fact into account.
Otherwise, the Tribunal had cumulative concerns with the Applicant’s evidence describing it as “vague and unconvincing” and noting that the Applicant’s “oral claims at the hearing were substantially different to his written claims”. There was nothing in the Tribunal’s reasoning processes and the conclusions formed by the Tribunal that was illogical or not supported by the evidence and materials before the Tribunal.
There is no jurisdictional error in the Tribunal referring to its findings of fact in relation to an Applicant’s refugee claims when assessing their claims under the complementary protection provisions,[10] and indeed that occurs in many Tribunal decisions appropriately.
[10] SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, 54-56.
There is no jurisdictional error attending the decision of the Tribunal. The First Respondent’s application for costs must succeed and costs are awarded in the sum as claimed, it falling within the scheduled Scale of Costs as provided for in the Federal Circuit Court Rules2001 (Cth).
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 September 2018
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