CIV16 v Minister for Immigration

[2018] FCCA 1282

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1282

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in not considering relevant material – whether the Tribunal’s discretion not to witness evidence was unreasonable – whether the erred in failing to take into account corroborative evidence – failure to make enquiries – whether the Tribunal erred in its finding with respect to Nepal – procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(3), 65, 427(3), 422B, 424A, 432

Cases cited:

Foote v Coroner’s Court of the ACT [2018] ACTSC 119
Katistat v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 422
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908
Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30

SZLPN v Minister for Immigration & Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration & Citizenship [2010] FCA 107
SZSSG v Minister for Immigration & Border Protection [2018] FCA 670

Applicant: CIV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 387 of 2016

Judgment of: Judge Smith

Hearing date: 22 February 2018

Date of Last Submission: 22 February 2018

Delivered at: Sydney and Perth

Delivered on: 28 May 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr P J Hannan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

(1)The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 387 of 2016

CIV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1.The applicant is a citizen of India who first arrived in Australia on 8 November 2007 as the holder of a student visa. He subsequently held a number of different visas and his application for permanent residency was refused in 2013.

2.On 5 December 2013 the applicant lodged an application for a protection visa. This application was based upon the claim that, while in Australia, the applicant had had a financial dispute with two Indian nationals, a husband and wife, living here and that he had been attacked by associates of the husband and wife upon return to India in November 2013 as a consequence of that dispute.

3.On 21 October 2014 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal (RRT) for review of that decision. On 1 July 2015 the functions of the RRT were assumed by the Administrative Appeals Tribunal which then undertook the review of the delegate’s decision.

4.The applicant attended a hearing conducted by the Tribunal on 8 October 2015 and again on 5 November 2015. On 25 July 2016 the Tribunal made a decision to affirm the decision of the delegate.

Tribunal’s decision

5.The Tribunal only accepted a limited number of the applicant’s claims as credible. It accepted that in 2012 he had paid a significant amount of money to the husband and wife to enter into business with them and to remain permanently in Australia. It also accepted that the applicant’s father had been a missing person since the early 2015.

6.However, the Tribunal had significant doubt that the husband and wife, or anyone else, held a serious intention to seriously harm the applicant should he return to India. It found that the applicant’s evidence in respect of the harm he feared was vague and general and not convincing overall and concluded that the applicant had fabricated those claims and concocted a story in respect of a claimed fear should he return to India.

7.Further, the Tribunal found that the applicant had a right to enter and reside in Nepal because he was an Indian citizen and that, even though the applicant had no desire to go to that country, he had not taken all possible steps to avail himself of the right to enter and reside in Nepal and there was no real risk that he would suffer serious harm or significant harm if he were to go to that country. Finally, the Tribunal found that the applicant would not be removed from Nepal to any other country where he faced a real risk of significant harm or persecution.

8.For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

9.The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

First ground: failure to consider relevant material

10.The applicant argues that the Tribunal fell into jurisdictional error by failing to consider relevant documents provided by him in support of his claims. The ground contains 11 sub-paragraphs of particulars which are grouped and considered separately below.

Particulars (a) – (g): documents found in the car of Mr and Mrs Joshi

11.The applicant says that it was his possession of documents that he had found in the car of Mr and Mrs Joshi that became the reason for the threats given to the applicant by the husband and wife and the subsequent life-threatening attack in India and the continuing threat to his life outside Australia.

12.This ground raises several issues: first, whether the documents were before the Tribunal; secondly if so, whether the Tribunal considered the documents; and thirdly, if not, whether its failure to do so constituted jurisdictional error.

13.It was not in dispute that the documents in question were before the Tribunal. I accept that that is the case. In his application for a protection visa the applicant listed, amongst a number of other documents, “documents and note books found from (husband’s) car” as being attached to his application. Although those documents were not in the Court book prepared for the proceedings by the representatives of the Minister, there was reference to them in the Tribunal’s decision: [28] and [43].

14.In order to address the remaining two issues it is necessary to examine the documents in a little more detail and their place in the applicant’s claims.

15.The applicant’s claims concerning the Indian couple were not considered by the delegate who, instead, based his decision upon the right of the applicant to enter and reside in Nepal. As a consequence, in a submission to the Tribunal, the applicant complained that the delegate had not considered his claims and instead sent his documents to the investigation team of the Department on his behalf. The submission continued:

…

4.I am providing following documents as in support of my case, which I had from the whole evidence given to DIBP they are as following;

a)Documents showing relation of applicant with this Indian national couple.

b)Entry of my name with the money I gave to them as per my claim.

c)All other documents showing different names of persons with contact detail, entry of huge amount of money transactions between people and group of companies.

d)Copies of passport, super details, visa forms, applications, sponsorship letters.

5.These all above said documents proves my claim and on face value reveals an immigration fraud. Reporting fraud is an immigration initiative policy as well which can be found on DIBP website.

…

16.The documents referred to in the submission are contained (with redactions of names other than the applicant’s) in the Court Book (exhibit B) at pages 310 to 417 as well as without redaction in Exhibit A. They are described (with some redactions) in the schedule at the end of these reasons.

17.It appears from the applicant’s submission that the documents were relied on to corroborate the following claims: first, that he had paid money to the Joshis; secondly, that a number of other people had paid money to the Joshis in connection with visa applications; thirdly, that the Joshis had a reason to be angry with the applicant for reasons other than his demands for repayment of the money he had paid them, namely, their involvement in immigration fraud.

18.At the hearing on 8 October 2015 the applicant expanded upon his claims concerning the Indian couple. The Tribunal recorded his evidence in this respect at [28] of its reasons:

28.The applicant told the Tribunal that he met Mr and Mrs Joshi when they worked together as cleaners for the Palace Cleaning Service in 2008–2009. He said they became friends and in mid 2012 they offered him a business opportunity. He was told that if he invested in their business he would get a good share of the profit; a job; and sponsorship to stay in Australia. The applicant told the Tribunal that he believed it was a good and genuine offer, because they were friends. He said he had worked hard to save money and was keen to get ahead in life and start a business. He said he was asked to invest AUD$50,000 as well as AUD$10,000 for visa expenses. He said he paid this in 3 instalments - $25,000 in September 2012; $30,000 in December 2012; and $5,000 in July 2013. He said he borrowed $13,000 from another friend – [Ms JS] – (which has since been repaid to her) because he did not have the entire $60,000 to give Mr and Mrs Joshi. The applicant said he was told by Mr and Mrs Joshi that they would do all the paperwork and that he would be given important company documents as a receipt for the money paid. He said that his application for permanent residency was lodged in December 2012. He said that he was issued with payslips, but never actually worked for the company. The applicant said that in September 2013, he learned that his business nomination had been rejected and his visa application withdrawn. He said when this happened he told Mr and Mrs Joshi that he would not be able to stay lawfully in Australia after December 2013 and he asked them to return his money. He said that their behaviour toward him changed and they told him that the money he had paid over could not be returned. The applicant told the Tribunal that he begged Mr and Mrs Joshi to return his hard earned money. The applicant told the Tribunal that he came to borrow the car belonging to Mr and Mrs Joshi at around the end of September 2013. When he did, he noticed a lot of papers in the car and he started reading them. He discovered that the paperwork consisted of lots of visa applications for people; their study certificates; police clearances; contact and TRN details; and lists of names with money details written against them. The applicant said he was astonished to see his name in the list with the amount of $30,000 against his name. He said that he started to doubt the legitimacy of the businesses when he saw these documents. He said he kept the documents after he returned the car and told Mr and Mrs Joshi that they were committing migration fraud and cheating people of their money. He said he asked them again to return his money. However, he said they got very angry when he confronted them. He said they threatened that he would face dire consequences if he did not return the documents and they also refused to pay his money back. The applicant told the Tribunal that because there was no other way of staying in Australia, he returned to India on 1 November 2013.

(Without alteration)

19.Later in the hearing the Tribunal asked the applicant a number of questions concerning his claims involving the Indian couple. One of the questions asked by the Tribunal, and the applicant’s response, was recorded at [43] of the Tribunal’s reasons:

43. When asked if he had taken any action, with the help of any authorities, to retrieve his money from Mr and Mrs Joshi. He said that he had obtained legal advice to the effect that he has no avenue for getting his money back until the Department has completed an investigation into their affairs. He could not provide the Tribunal with the name(s) of any lawyers he had consulted. He said he had not been to the police about the matter. He also said he had given the documents he found in the car of the Joshi’s to the Department.

20.The Tribunal accepted that the applicant had paid a significant amount of money to Mr and Mrs Joshi to enter into business with them and to remain permanently in Australia: [82]. However, as I have observed, it had significant doubt that Mr and Mrs Joshi or anyone else had a serious intention to seriously harm the applicant should he return to India (see [83]) and found that the applicant had “fabricated his claims and concocted a story in respect of a claimed fear should he return to India”: [86]. It gave a number of reasons for this.

21.First, the Tribunal found that the applicant’s evidence concerning his dealings with Mr and Mrs Joshi following his permanent visa refusal in September 2013 was vague and lacking in detail. It noted, in particular, that he was unable to tell the Tribunal how it was he came to access the car of Mr and Mrs Joshi following their disagreement about the money owed and he gave vague evidence about their behaviour towards him and the conversations they had after that time: [84].

22.Secondly, the Tribunal found that the applicant’s evidence about the attack on him when he returned to India in 2013 was “vague, rehearsed and overall not convincing”. It referred to the fact that “the applicant was unable to describe his alleged attackers or the assault on him in any great detail”; and the fact that he was unable to respond to the Tribunal’s concern that it was implausible that he was attacked in respect of the claimed dispute with Mr and Mrs Joshi so soon after returning to India while travelling in a vehicle while outside of his home area. The Tribunal also pointed out that the applicant was unable to explain why he was not admitted to hospital for treatment of his injuries even though he claimed to have “been beaten so badly that he was hardly conscious”: [84].

23.Thirdly, the Tribunal found that it was significant that Mr and Mrs Joshi lived in the same city in Australia as the applicant, and yet, he had not had any contact with them or anyone else on their behalf since the end of 2013. It did not accept that the applicant’s explanation as to why he did not fear harm from Mr and Mrs Joshi while he remained in Australia was persuasive: [85].

24.Fourthly, the Tribunal found that the applicant’s visa history since his arrival in 2007 also undermined his claims and credibility. The Tribunal noted that the applicant had applied for various visas to prolong his stay in Australia since he arrived and that one of the reasons he had entered into an arrangement with Mr and Mrs Joshi was to enable him to stay in Australia permanently. The Tribunal did not accept the applicant’s explanation of these matters and found that the application for a protection visa was the applicant’s last ditch effort to remain in Australia: [89].

25.Fifthly, the Tribunal relied upon the fact that information was provided by a confidential source that indicated that the applicant had concocted a story about being attacked in India in order to lodge a claim for protection; that he had lived at the same address in Perth for the last six years; was not fearful for his life; and, that nobody had threatened him or his parents at any time over the last three years: [90].

26.These reasons disclose that the Tribunal did not accept that the applicant had taken the documents submitted by him from Mr and Mrs Joshi’s car or that the dispute between the parties was sufficient to give rise to any risk of harm to the applicant.  In light of those findings, the contents of the documents were not material to the Tribunal’s decision and it was for that reason that there was no express finding made about those documents. 

27.This is a case where the Tribunal has made a finding at a high level of generality other than the specific matter that was said to have been overlooked.  In addition, this leads me not to be satisfied that the Tribunal overlooked these documents in a way that might have supported the conclusion of jurisdictional error.  Not only did the Tribunal expressly refer to the existence of documents and the claim made on the basis of them (see [84]), but it also made the comprehensive finding of lack of credit based upon a series of matters that included the applicant’s evidence about the way in which he claimed to have obtained the documents. 

28.I would also add that, having considered the documents for myself, I do not find them to be very persuasive of the applicant’s claim that they prove immigration fraud “on face value”. 

29.There are a number of documents that record payments of sums of money by individuals, superannuation membership numbers, application forms, decision records, passports, marriage certificates, employment records and correspondence with the Department of Immigration.  Those are all entirely consistent with their business of providing migration advice in connection with visa applications. 

30.There is only one page in the whole of the bundle which appears to be of any concern.  It is document number 13 in the attached schedule and page 365 of the Court book.  That document shows a breakdown of charges apparently charged in respect of an application for a subclass 457/857 Business (Long Stay) visa/regional.  Amongst the charges there is one described as “sponsor subsidies” which is given in the amount of $20,000.  An inference could possibly be drawn from that that the visa applicant was paying for a false sponsorship.  However, that is far from the only inference that may be drawn from the document and there may have been numerous other or innocent explanations for it.

31.For those reasons, the Tribunal did not fall into jurisdictional error in connection with the documents said to have been taken from the car of Mr and Mrs Joshi.

Particular (h): medical records

32.The applicant also contended that the Tribunal failed to consider a medical report provided by him from the Royal Perth Hospital.  That document is at pages 286 to 289 of the Court book.  The document was a discharge summary dated 18 September 2015, just under a month before the first hearing conducted by the Tribunal.  The summary noted that the applicant self-represented to the Emergency Department “requesting psychiatry review for management of depression and insomnia”.  It notes that the applicant was admitted to the psychiatry ward on a voluntary basis and noted that he discharged himself the following day, being deemed competent to make the decision and that no changes were made to his medication which had been commenced by his general practitioner.

33.The applicant relied upon that report to request an adjournment of the hearing for one month. That, and a later request were refused: see Tribunal’s reasons at [15]. The Tribunal noted that at the hearing on 9 October 2015, it asked “the applicant at the start of the hearing if he felt able to participate in the hearing, and to tell it what he wanted to say, and to answer questions by the Tribunal”. It indicated that regular breaks would be allowed. The applicant told the Tribunal that he had taken his medication and he felt able to participate in the hearing.

34.There is no evidence to suggest that the applicant was unable to engage meaningfully in the hearing on 9 October 2015.  The report from Royal Perth Hospital does not support such a conclusion as it does not relate to that date and the evidence shown at [16] of the Tribunal’s reasons as to what occurred at the hearing.  This leads me to conclude that the applicant was fully able to engage in the hearing.  For that reason, there was no error in the failure by the Tribunal to adjourn the matter on that day.

35.The applicant also claims that the Tribunal failed to consider that the applicant had experienced harm in the past and was likely to be persecuted in the future.  That is a claim concerning the merits of the Tribunal’s decision.  It clearly considered that issue and rejected it.

Particular (i): witness statement/medical report

36.The applicant argues that his claim was corroborated by the statement of his witness:  see pages 294 to 296 of the Court book.  The Tribunal referred to that statement at [12] of its reasons and also noted at [48] to [51] the evidence given by the applicant’s witness at the hearing.  It considered the evidence at [88] of its reasons but gave that evidence no weight because of its comprehensive credit findings against the applicant.  These matters establish first, that the Tribunal considered the evidence of the applicant’s witness; and secondly, that it had a rational basis for not attributing any weight to that evidence:  see Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30.

37.The applicant claims that the Tribunal “formed its own opinion about the medical condition of the applicant at the time of the attack in India” but did not consider the medical report provided by the applicant at page 114 of the Court book.  While the Tribunal did not expressly refer to the medical report from India, it did consider the applicant’s oral evidence concerning the injuries that he had sustained (see [31] and [84]).  The evidence referred to at [31] of its reasons was consistent with the medical report; however at [30] of its reasons the Tribunal noted the applicant’s evidence that he had “been beaten so badly he was barely conscious”.  It was that evidence, which the Tribunal noted at [84], that stood in stark contrast to the applicant’s evidence that he had not been admitted to hospital for treatment of his injuries. In light of that reasoning, I do not infer from the failure by the Tribunal to refer to the medical report that the Tribunal did not consider it.

Particular (j): country information

38.The applicant claims that the Tribunal failed to consider country information about the law and order in India and Nepal which was provided by the applicant.

39.While it is true that the Tribunal did not expressly refer to the volumes of material submitted by the applicant in support of his claims in respect of both India and Nepal, I am not satisfied that the Tribunal failed to consider that material. The applicant’s claims in respect of India failed with his claim that he faced harm from the Joshis. None of the country information was material to that conclusion and so there was no obligation on the Tribunal to address the information in its reasons.

40.In respect of Nepal, the critical findings were that the applicant had a right to enter and reside in that country within the meaning of s.36(3) of the Migration Act 1958 (Cth); the Joshis would not attempt to find him there; there was no other risk of serious harm; and, that there was no evidence to suggest that Nepal would send the applicant to India. The Tribunal referred to the information which formed the basis of these findings: [96] (footnote 2); [97] (footnote 3); [107] (footnote 8). The adequacy of that information was not in issue and the Tribunal was not required to refer to any other material considered by it for the purposes of the review.

Particular (k): the applicant’s submissions

41.It is not entirely clear what submissions are referred to in this particular. The applicant sent a document to the Tribunal on 6 October 2015 entitled “Submission of Ducuments” [sic] (Court book p. 293). However, that did no more than attach a number of documents. The Tribunal referred to this at [12]. The applicant also made comments on information sent to him by the Tribunal on 7 January 2016. The Tribunal referred to those comments at [58]. Given those two matters and the lack of clarity in the particular, I cannot be satisfied that it identifies any jurisdictional error.

42.The first ground is rejected.

Ground 2: “The Tribunal exercised its discretion not to take evidence from witnesses in a manner that was unreasonable and not based on any logical foundation and denial of procedural fairness to applicant”

43.On 8 September 2015 the applicant was sent an invitation by the Tribunal to attend a hearing on 8 October 2015.  In his response to that hearing invitation signed on 21 September 2015, the applicant indicated that he wished the Tribunal to take oral evidence from his friend [Mr JS].  The Tribunal did that.  By letter dated 6 October 2015, 2 days before the date upon which the hearing was scheduled to take place, the applicant wrote to the Tribunal requesting it to issue summonses to the people whose names and details were found in the documents that he claimed to have taken from the back of Mr and Mrs Joshi’s car.  The applicant relevantly wrote:

7.The AAT has power to summon any witness as to make inquiries about this claim if deemed necessary to do so in the interest of justice.  I am providing the contact details of persons through (form for summons to give evidence) which I got from these documents.

44.Enclosed with that letter were a number of summonses to give evidence[1] each of which included the name, address and mobile telephone number of individuals.  The Tribunal did not issue those summonses and proceeded with the hearing on 8 October 2015.  At the conclusion of that day, the hearing was adjourned to 5 November 2015.  The applicant did not renew his request for the Tribunal to issue any summonses nor did he ask that the Tribunal take any evidence from any other particular person.

[1] Court book pp.418 to 443.

45.The Tribunal has power under s.427(3) of the Act to “summon a person to appear before the Tribunal to give evidence”. That provision provides a power rather than a duty: see for example, Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 (application for special leave refused Katistat v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 422). The real question, however, in the light of Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 is whether the Tribunal’s failure to exercise its power to summons people to give evidence was unreasonable in all of the circumstances. I find that it was not.

46.The Tribunal did not give reasons for its decision not to issue summonses to the people proposed by the applicant. For that reason, the Court is required to determine whether there is any intelligible justification for its decision.  The critical factor in this case is first, that the request by the applicant was for the Tribunal to exercise its power of compulsion to individuals who had little or nothing to do with the real issues in the proceedings.  It may have been that the individuals which the applicant sought to have give evidence could have shed some light on their dealings with Mr and Mrs Joshi, however, there was nothing to suggest that they knew anything about the applicant’s dealings with those people. 

47.Secondly, the applicant made his request two days before the first hearing. That did not give the Tribunal any reasonable time to issue the summonses, even taking into account the later adjourned hearing. It is to be remembered that it is an offence if a person fails to comply with a summons: s.432. That offence is punishable by imprisonment for 12 months or 60 penalty units or both.

48.Finally, the applicant has not adduced any evidence to suggest that he renewed his request for the issue of summonses or pressed the Tribunal to meet his request at the hearing either on 8 October 2015 or 5 November 2015.  A lack of any such submission suggests that the applicant was content to proceed with his hearing in the absence of the people whose names appeared in the draft summonses. 

49.This ground is rejected

Ground 3: Failure to take into account corroborative evidence of the witness [Mr JS]

50.I have dealt with this ground at [36] above. The ground is rejected.

Ground 4: Failure to make enquiries

51.The applicant asserts that the Tribunal should have made enquiries about the documents provided by him and also that it should have called the witnesses that the applicant asked for summonses to be issued to.

52.It may be accepted that in some circumstances jurisdictional error may arise by the failure by the Tribunal to make an obvious enquiry about a critical fact, the existence of which is easily ascertainable (Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). There was no jurisdictional error here. I concluded at [43] to [48] above that the Tribunal considered the documents in question. The applicant did not suggest what obvious enquiry could have been made about those documents other than to summons the witnesses. For the reasons I have given at [48] above, there was no jurisdictional error in the Tribunal’s failure to issue summonses in accordance with the applicant’s request.

Ground 5: The Tribunal did not make enquiry into the information received against the applicant

53.The particulars of this ground do not address the error identified in the ground itself.  The variety of the allegations in the particulars makes it necessary, once again, to group them to some extent.

Particulars (a) and (b)

54.The first and second particulars seem to suggest that the Tribunal failed to comply with s.424A of the Act in respect of information found at page 925 of the Court book. That argument cannot be sustained.

55.The document at page 925 of the Court book is a letter dated 7 January 2016 sent to the applicant under s.424A of the Act. In the letter, the Tribunal explained that it had received information, in confidence, which indicated:

…

○after a restaurant owner ran away with $60,000 you paid them in an attempt to obtain a substantive visa in Australia, you returned briefly to India and made up a fake attack on yourself in order to lodge a claim for a protection visa when you returned to Australia; and

○you have lived at the same address for the last 6 years and you are not fearful for your life; and

○nobody has threated you or your parents at any time over the last 3 years.

…

56.The Tribunal then went on to explain the relevance of the information as casting doubt over the truthfulness of the applicant’s claims and, in particular, his claim that the applicant was attacked when he returned to India and that his father had been missing since January 2015.  The Tribunal invited the applicant to comment upon that information and provided a time by which he was to do so.

57.Section 424A of the Act provides:

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; 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).

(Emphasis in original)

58.The letter of 7 January 2016 complied with each of the obligations in s.424A(1).

Particular (c)

59.This particular is that the Tribunal adopted an irrational, illogical and inconsistent approach to the information and that it did not consider the applicant’s response to the information received by the Tribunal on 29 January 2016.

60.The applicant suggests that the illogicality or inconsistency arises from the fact that the Tribunal referred to a “dob in” letter at [56] of its reasons for decision and yet, at item 40 of the index to the Court book there is a reference to a “bundle of emails from confidential source to AAT regarding applicant’s claim”. 

61.The applicant is correct in so far as there is a difference between the two; however, the former was written by the Tribunal and the latter was prepared by the solicitors for the Minister in connection with these proceedings.  The fact that the Tribunal described the material before it as a “dob in” letter does not mean that the information was not contained in a series of emails from a confidential source.  The term “dob in” letter can equally apply to emails, letters or any other written form of communication.

Particular (d)

62.The applicant contends two things in this particular: first, that the applicant was not given an actual opportunity to “explore and rebut” the information in the “dob in” letter; and secondly, that it failed to consider the applicant’s submissions. I have already found that the Tribunal complied with s.424A in respect of the “dob in” letter. That was sufficient compliance with its obligation to afford the applicant an opportunity to address the “dob in” letter in light of s.422B of the Act. Similarly, I have already concluded that the Tribunal considered the applicant’s response to that information: see [41] above. This contention is rejected.

Particulars (e) and (f)

63.These particulars are, for the most part, no more than a statement of a claim made by the applicant in support of his visa application. To that extent, they do not raise any jurisdictional error. The applicant also asserts that the “Tribunal made an observation against the credibility of the applicant without making an enquiry.” It is not at all clear what enquiry it is said the Tribunal should have made. It appears to be no more than a suggestion that the Tribunal should have made a different finding of fact. That does not reveal jurisdictional error.

Particular (g)

64.This ground is, in full:

The Tribunal exercised the power in arbitrary manner. The Tribunal failed to consider the law properly, relating to giving benefit of doubt to the applicant.

65.The assertion appears to be that, as a matter of law, the Tribunal had to give the applicant the benefit of the doubt and, in failing to do so, it acted arbitrarily and inconsistently with the law.

66.There is no general obligation to give an applicant the benefit of the doubt and that is particularly so where, as here, the Tribunal did not accept the applicant’s general credibility: SZNRZ v Minister for Immigration & Citizenship [2010] FCA 107 at [19]-[21]; see also SZLPN v Minister for Immigration & Citizenship [2010] FCA 202 at [15] – [17]. The ground fails for that reason.

Particular (h)

67.It is necessary, again, to set this particular out in full:

The Tribunal didn’t give any consideration to the mental health, circumstances of the personal life of the applicant. Neither the Tribunal considered the fact that the applicant is a victim of fraud, which the Tribunal accepted and the applicant became whistle blower by reporting a multimillion dollar immigration scam, which put his life at risk. The Tribunal neglected the evidence entirely as provided by the applicant in an arbitrary manner. The evidence consists of documents, witnesses and not merely verbal.

68.The true complaint in this paragraph is that the Tribunal did not believe the applicant. That complaint is clearly correct; however, it does nothing to advance the application for judicial review. As such, the ground could be rejected simply as an attack on the merits. However, there is no need to resort to such well-worn phrases. Indeed, the use of such phrases may give rise to an apprehension that this, or the many similarly focussed grounds raised by unrepresented litigants, have been simply brushed to one side: cf. SZSSG v Minister for Immigration & Border Protection [2018] FCA 670 at [9].

69.Grounds such as this, which arise from dissatisfaction with a factual finding made against a visa applicant, are almost always based on the assertion that the finding is wrong. Very often that dissatisfaction is expressed in terms that have the appearance of a ground of judicial review such as “illogicality”, “irrationality”, “arbitrary”, “failure to consider”, “unfair”, “biased” and so on: see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40]; [1999] HCA 21 (Gleeson CJ and McHugh J). That is not unusual. They are terms used in every day disputes outside the courts. A referee, for example, who awards a penalty to one sporting team is accused by supporters of the other team not just of being wrong, but also of bias, ignorance of the rules and irrationality.

70.Once it is established that such grounds are of this nature, they must be rejected because they are based on a fundamental misunderstanding of the role and duty of the Court. Associate Justice McWilliam crisply summarised the relevant principle in Foote v Coroner’s Court of the ACT [2018] ACTSC 119 at [54]:

... The Court’s power on judicial review is limited to determining whether the decision-maker acted lawfully, ...  The Court does not look to the factual merit of the decision maker.  It has no jurisdiction to simply cure administrative injustice or error: Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 36.

71.The “factual merit” referred to by her Honour is simply whether the findings of facts were wrong, or, put another way, whether a different finding would be made by the Court or by the Tribunal differently constituted.

72.The Tribunal’s duty was to “review” the delegate’s decision. This meant that it had to decide for itself, on the material before it, the question posed by s.65 of the Act. That question was whether it was satisfied that the applicant satisfied the criteria for the grant of the protection visa. This, in turn, required it to consider the factual claims made by the applicant in support of his contention that he did satisfy those criteria.

73.In other words, it had to determine, as an integral part of its review, whether it accepted the facts relied on by the applicant. In doing so, it had to actively consider the material before it in light of the arguments pressed by the applicant and to act fairly and rationally or, as some might say, reasonably. Providing that it did so, it acted within the scope of its power and, regardless of whether there was some error in the Tribunal’s determination of the facts, the Court has no power to intervene. Another way of describing the same analysis, as the High Court did in respect of an exercise of discretion in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [74] and [75], is to say that the findings of fact (or exercise of discretion) was open to the Tribunal and justified on the material.

74.This particular is rejected.

Ground 6:     “The Tribunal fell into jurisdictional error by applying the law on Nepal issue”

75.Although this ground too, is expressed in terms of a “failure to consider” certain matters, what is meant is that the Tribunal did not accept the matters referred to. The Tribunal did consider the material before it, addressed the applicant’s concerns about relocating to Nepal and made findings based on its consideration of those matters. This is an attack on the merits of those findings. For the reasons that I have explained above, that does not give rise to any jurisdictional error and the ground is rejected.

Conclusion

76.There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       28 May 2018

SCHEDULE

#	DATE	FROM	TO	DESCRIPTION
1	9/5/2012	E-CI Pty Ltd	DK	Offer of full time position as chef/cook
2	5/7/2013	ML Pty Ltd …	MR (DIAC Case Officer)	Need for full time customer service manager ...
3	21/5/2012	E-CI Pty Ltd	KST	Offer of full time employment as graphic …
4	10/8/2012	GJ	Mr C P	Request for return of funds from investment in ...
5	9/5/2012	E-CI Pty Ltd	VS	Offer of full time position as cook
6	17/5/2013	MHG Pty Ltd	PK	Offer of full time position as café manager
7	7/6/2012	Govt. of WA Dept. of Training and Workforce Development	ARB	Notification of successful application for Regional Sponsored Migration Scheme Certification.
8	30/5/2013	MHG Pty Ltd	HS	Offer of full time position as cook
9	26/10/2012	MHG Pty Ltd	N/A	Declaration made regarding inability to hire Australian citizen/permanent resident …
10	10/8/2012	MHG Pty Ltd	N/A	Declaration made regarding inability to hire Australian citizen/permanent resident …
11	13/1/2012	N/A	N/A	Payment Schedule with amount noted …
12	21/5/2012	SC	NK	Notice of intention to cancel enrolment due …
13	12/1/2012	E-CI Pty Ltd	N/A	Subclass 457/857 information page detailing total charge as $50,000.
14	24/1/2012	DIAC	E-CI Pty Ltd	457 Business Nomination Post Lodgement Summary
15	5/4/2012	MS	E-CI Pty Ltd	Application form.
16	27/9/2011	West Australian Police	HB	National Police Certificate
17	22/2/2012	West Australian Police	AK	National Police Certificate
18	27/3/2012	West Australian Police	VS	National Police Certificate
19	20/9/2011	Australian Federal Police	KKJ	Police Certificate – Name Check Only
20	20/9/2011	Australian Federal Police	KST	Police Certificate – Name Check Only
21	28/9/2010	Dept. of Education, Employment and Workplace Relations	KP	Acknowledgment of Provisional Skills Assessment Application Evidence

22	N/A	Dept. of Education, Employment and Workplace Relations	AT	Migration Skills Assessment Application Result
23	29/3/2011	Dept. of Education, Employment and Workplace Relations	SS	TRA Provisional Skills Assessment Application Result
24	24/1/2012	GK	E-CI Pty Ltd	Application Form
25	25/5/2013	HS	N/A	Employment Application Form
26	25/8/2006	N/A	N/A	Copy of Memorandum of Marriage of …
27	16/7/2013	N/A	N/A	Contract for the use of restaurant premises between …
28	24/1/2012	DIAC	E-CI Pty Ltd	457 Business Sponsorship Post Lodgement Summary
29	24/1/2012	DIAC	E-CI Pty Ltd	Successful save of ‘Sponsoring temporary entry overseas employees to Australia’ application
30	2/5/2013	N/A	N/A	Copy of Passport of …
31	2/5/2013	N/A	N/A	Copy of Passport of …
32	8/8/2012	N/A	N/A	Copy of Passport of …
33	30/4/2012	N/A	N/A	Copy of Passport of …
34	3/7/2012	N/A	N/A	Copy of Passport of …
35	17/9/2012	N/A	N/A	Copy of Passport of …
36	28/5/2013	N/A	N/A	Copy of Passport of …
37	29/2/2012	N/A	N/A	Copy of Passport of …
38	29/2/2012	N/A	N/A	Copy of Victorian learner driver permit of …
39	N/A	N/A	N/A	Copy of Passport of …
40	19/12/2012	N/A	N/A	Copy of Passport of …
41	N/A	N/A	N/A	Copy of Passport of …
42	22/8/2012	N/A	N/A	Copy of Passport of …
43	13/11/2012	N/A	N/A	Copy of Passport of …
44	13/11/2012	N/A	N/A	Copy of Passport of …
45	N/A	N/A	N/A	Copy of Passport of …
46	N/A	N/A	N/A	Copy of Passport of …
47	N/A	N/A	N/A	Copy of Passport of …
48	N/A	N/A	N/A	Copy of Passport of …
49	7/7/2012	N/A	N/A	Copy of Passport of …
50	N/A	N/A	N/A	Copy of Passport of …
51	29/11/2012	N/A	N/A	Copy of Passport of …
52	5/4/2012	N/A	N/A	Copy of Passport of …
53	30/5/2012	N/A	N/A	Copy of Passport of …
54	N/A	N/A	N/A	Item 14-20 of visa application form of  …
55	N/A	N/A	N/A	Item 8-19 of visa application form of …
56	N/A	N/A	N/A	Item 8-19 of visa application form of ...
57	N/A	N/A	N/A	Item 14-20 of visa application form of ...
58	N/A	N/A	N/A	Item 10-18 of visa application form of …
59	N/A	N/A	N/A	Form 80 of …
60	N/A	N/A	N/A	Item 14-20 of visa application form of …
61	N/A	N/A	N/A	Form 80 of …
62	19/4/2013	CMC …	RS	Medical Certificate
63	N/A	N/A	N/A	Item 25-31 of visa application of …
64	6/3/2012	AI&EC	DK	Email notification of bridging visa grant under the onshore general skilled migration program for …
65	N/A	DIAC	MKDS and MKD	Student visa application decision record
66	N/A	N/A	N/A	Item 15-20 of visa application of …
67	N/A	N/A	N/A	Form 80 of …
68	24/5/2012	N/A	N/A	Declaration of nomination by …
69	N/A	N/A	N/A	Item 25-32 of visa application form of …
70	N/A	N/A	N/A	Item 8-19 of visa application form of …
71	N/A	N/A	N/A	Form 1066 of …
72	N/A	N/A	N/A	Item 14-20 of visa application form of …
73	N/A	N/A	N/A	Item 14-20 of visa application form of …
74	N/A	N/A	N/A	Item 2-9 of visa application form of …
75	N/A	N/A	N/A	Mobile phone contact list of individuals
76	3/12/2012	N/A	N/A	Page of accounts
77	N/A	N/A	N/A	Spreadsheet listing individuals and amounts.
78	N/A	N/A	N/A	Page of accounts
79	8/3/2013	E-CI Pty Ltd	WA	Email listing superannuation membership numbers of individuals
80	N/A	N/A	N/A	List of individuals and date of birth
81	N/A	N/A	N/A	Item 21-27 of visa application form of …
82	N/A	N/A	N/A	Item 44-49 of visa application nominated by …
83	N/A	N/A	N/A	Copy of passport of …
84	N/A	N/A	N/A	Copy of passport of …