CZCC v Minister for Immigration

[2015] FCCA 3374

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZCC v MINISTER FOR IMMIGRATION &  ANOR [2015] FCCA 3374

Catchwords:
MIGRATION – Review of decision of the Refugee Review Tribunal – general claims and submissions by the Applicant without reference to detail of the decision under review or to relevant legal principle – onus on Applicant to establish relevant error – onus not discharged.

Legislation:

Migration Act 1958, ss.36(2), 353, 357, 424A, 430, 477

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323
Northern New South Wales FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39
Perera v Minister for Immigration and Multi-Cultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

Applicant: CZCC

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: CAG 7 of 2015

Judgment of: Judge Neville

Hearing date: 4 June 2015

Date of Last Submission: 9 July 2015

Delivered at: Canberra

Delivered on: 18 December 2015

REPRESENTATION

Solicitor/Advocate for the Applicant: Mr Ford

Solicitors for the Applicant:

Solicitor/Advocate for the Respondent: Mr Bock

Solicitors for the Respondent: Clayton Utz, Canberra

ORDERS

1. The Application, filed 27^th January 2015, and the Amended Application, filed 14^th April 2015, be dismissed.

2. The Applicant pay the First Respondent’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 7 of 2015

CZCC

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27^th January 2015, the Applicant filed an Application challenging the decision of the Refugee Review Tribunal (“the Tribunal”) which was delivered on 22^nd December 2014.  An Amended Application was filed on 14^th April 2015.

2. The grounds for the Application are very discursive and are set out over some five plus pages in the Application.  In very large measure, the grounds of the Application provide submissions rather than formal, discrete grounds of review, and a critique of various paragraphs in the Tribunal’s decision.  Indeed, in the Application filed on 27^th January 2015, apart from the first two grounds which relevantly seek to preserve the Applicant’s rights to make new, or to remove or to amend the existing, grounds, the Applicant comments on and or criticises the Tribunal’s decision over the remaining 30 paragraphs.  Regularly (and unfortunately) this critique occurs without much or any reference to legal principle.

3. In the Amended Application, filed 14^th April 2015, the Applicant’s lawyer sets out firstly the grounds for an extension of time, pursuant to s.477 of the Migration Act 1958 (“the Act”).  The Applicant confirmed that the Minister has consented to the extension of time, given that the lawyer was unwell, and the Application was only 1 day late.

4. Then, in very closely typed script, the Applicant sets out a [further] 30 paragraph critique of the Tribunal’s decision.  As already noted, what has been provided are less discrete grounds of review, and more submissions in relation to the Tribunal’s decision.

5. Doing the best I can in such circumstances, the grounds of the Application might reasonably fall into six categories.  Those categories relate to:

   a)the credibility of the Applicant;

   b)the bias of the Tribunal (actual and/or apprehended – it is unclear which);

   c)the Tribunal taking into account irrelevant considerations;

   d)the Tribunal failing to take into account particular evidence in relation to the Applicant’s post-traumatic stress disorder;

   e)there being “no evidence” for certain other findings by the Tribunal; and

   f)there were/are various (and allegedly) numerous errors in relation to the translation in the course of the hearing.

6. There are other matters of concern raised by the Applicant but which are more by way of general complaint rather than formal challenge.  The Minister’s submissions set out relevant paragraphs that are complained of; I need not detail them here.

7. One procedural aspect of the matter should be noted at the outset.  As set out in paragraph 1 of the Tribunal’s reasons (emphasis added):

   The Applicant is a citizen of Turkey.  He claims that he fears persecution in Turkey because of his involvement in pro-Kurdish political parties and that he is also a draft evader.  His Application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision. … On 23 April 2013 the Tribunal, differently constituted (the first Tribunal), affirmed the decision under review.  On 16 October 2013, the Federal Circuit Court ordered, by consent, that a writ of certiorari issue directed to the Tribunal quashing the decision of the first Tribunal and the writ of mandamus issue directed to the Tribunal requiring it to determine the Application made to it for view of the decision of the delegate of the Minister dated 8 June 2012, according to law.  The court noted that the Minister accepted that the Tribunal had failed to comply with section 424A of the Migration Act 1958 because it had failed to put to the Applicant for comment particulars of information relating to evidence given by his brother in connection with his Application for a protection visa.

8. It will be seen from this opening comment by the Tribunal that it was acutely aware of the failure by the Tribunal in the original hearing in its process and in the evidence that was taken into account in making the original decision.

Background Facts

1. The following general matters may be taken as uncontroversial from the reasons of the Tribunal.[1] 

   [1] The reasons are set out in the Court Book (“CB”) at pp.289 – 317.

2. The Applicant is aged in his 30s.  His wife and their four children remain in Turkey.  The Applicant is an Alevi Kurd and, as such, was part of a minority group in Erzurum, Turkey.  He was also a member of Kurdish political parties in Turkey.

3. The Applicant said that while he could speak, read and write Turkish he could only speak but not write Kurdish.  He told the Tribunal that he could read Kurdish with difficulty.  He said that he had subscribed to a Kurdish newspaper because he wanted to practice reading Kurdish.  He also said that, although he was an Alevi by religion, at the hearing before the Tribunal he said that this was from his Father’s side but he was Sunni on his Mother’s side and that he practised his religion as a Sunni in Turkey.[2]

   [2] At [3] of the Tribunal’s reasons.

4. The Applicant claimed that his home village was burnt to the ground in 1989 and again in 1998.  After 1998, the Applicant’s family moved to Istanbul.  The Applicant went on to establish himself in that city in his own business.  He became involved in various versions of Kurdish political parties.  In or around 2003 and 2004, the Applicant was subjected to intimidation, he says, during identity checks and he was subsequently detained by police.  He said that in 2007 he and his business were attacked by a group of Turkish nationalists.  They damaged his property and threatened to kill him if he continued his involvement in pro-Kurdish politics.

5. He said that the police were called but did not respond for approximately two hours.  The Applicant was taken to the police station for questioning where he was told that it was better for him to move somewhere else because it may not be safe for him to remain in his current location.  He said that following the 2007 attack he tried to relocate his business within Istanbul but his clients ceased business with him.  The Applicant suspected that this was because of threats by nationalists or the police.

6. He said further that in December 2009, following protests in various suburbs in Istanbul, the police raided several houses including his.  He said he was interrogated by the police at the local police station.  In April 2011, the Applicant said that he assisted the Peace and Democracy Party with the general election campaign in Sargazi and visited hundreds of Kurdish homes.  He said the police again detained him in early 2011, alleging that he was promoting and supporting a terror organisation.  He was detained overnight, interrogated twice, and a gun was pointed at him, he said, with a threat to kill him.  All this was said to be done by the police.

7. He said further that while he was detained he later discovered that the police had raided his house.  On 20 April 2011, the Applicant obtained a passport and applied for a visa to Australia which was granted in late July 2011.  He left Turkey on 31 July 2011 and arrived in Australia on 2 August in that year.  In October 2011, the Applicant said that police arrested some of the people the Applicant knew from his involvement in Kurdish political parties.  He claimed a fear of harm from the police as a result if he was to return to live in Istanbul.

8. On 8 June 2012, a delegate of the Minister decided to refuse to grant a protection visa to the Applicant.  In doing so, the delegate noted that at an interview the Applicant raised new evidence and claims, including that he paid a bribe to a high ranking official in the Turkish National Police in order to secure is departure from Turkey, and that his wife had told him that 60 policeman had raided his house following his departure and that they were searching for him.

9. The Delegate determined that these last minute changes in his account gave rise to the Delegate considering that there were doubts about the totality of the Applicant’s evidence, not least having regard to independent country information which indicated that Kurds were able to live in a manner free from persecution in Turkey.  Ultimately, the delegate concluded that the Applicant’s claims were fabricated.

10. Following a hearing in this Court, the matter was remitted to the Tribunal to determine the matter according to law.

The Tribunal’s Decision

1. Summarily stated, the second Tribunal decision affirmed the decision not to grant the Applicant a protection visa.  The Tribunal found that notwithstanding a psychologist’s report that indicated that the Applicant had developed post-traumatic stress disorder and severe depressive disorder, the Applicant had no apparent difficulty in responding to questions or addressing issues raised at the hearing.[3]

   [3] See [54] – [55] Tribunal’s reasons.

2. The Tribunal also noted that there were significant differences in the Applicant’s claims in his written statements, his oral evidence at the departmental interview, and in his oral evidence before the two Tribunal hearings.  These related, amongst other things, to his involvement in political activities in Turkey and his religion and identity as an Alevi Kurd.

3. The Tribunal concluded that the Applicant’s evidence in relation to being a draft evader lacked credibility.  The Tribunal considered that this evidence was to be given less weight in the light of independent country information that indicated that draft evaders would be detected and prevented from leaving Turkey but the Applicant’s evidence was that he left Turkey on his own passport for business in 2007.

4. He had also given earlier statements to the effect that he had undertaken and completed military service requirements. For these reasons, the Tribunal was not satisfied that the Applicant satisfied the criterion for the grant of a protection visa set out in s.36(2) of the Act and affirmed the Delegate’s decision not to grant the Applicant a protection visa.

Applicant’s Submissions

1. I will not repeat, or consider, the detail from paragraphs 5 - 32 of the Application filed on 27 January 2015 because it is quite unclear what is a ground of review, and what is a submission.  Instead, I will refer to the outline of submissions provided by the Applicant’s legal representative filed 22 May 2015, and the further submissions that were filed on 26 June 2015 and take them, doing the best I can, what are the Applicant’s discrete grounds of review.

2. Very summarily stated, as I read the so-called grounds of review, together with the submissions, there are five specific areas of complaint, most of which I have already referred to, but for ease of reference those five areas are bias, errors in translation, proper consideration of the Applicant’s post-traumatic stress disorder, the relevance or otherwise of the Applicant’s religion and, finally, the role of the Tribunal to make relevant and proper inquiries.

3. In the submissions filed on 22 May 2015, the Applicant submitted that the Tribunal was biased in arriving at its decision to refuse the Application.  This was because, so it was said, there had been an earlier consent order filed in this Court in which an error of law was agreed had been committed in the original proceeding before the Tribunal.  In consequence, it was submitted that:

   A reasonable person in the street would conclude that the Refugee Review Tribunal was incapable of dealing with the Applicant in a fair manner as is required by the legislation.

4. I pause here simply to note two things: first, the second Tribunal hearing was constituted by a different member to the person who determined the matter on the first occasion.  Secondly, the articulation of the test in relation to bias:

   a)seems to refer to the test for apprehended bias, although later submissions (considered below) could be considered to be a contention of actual bias against the Tribunal; but

   b)it pays no regard to (let alone refers to) any relevant High Court authority that articulates the test for apprehended bias.[4]  Such matters are discussed further below.

   [4] See, for example, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [36] – [37], [71] – [72] (Gleeson CJ & Gummow J).

5. It was next submitted that the Tribunal placed great weight on the comments of the Applicant’s brother, and the apparent inconsistency between what was said by the brother and what was said by the Applicant.  Otherwise, it was submitted that the Tribunal took into account an irrelevant consideration when it took into account the comments of the brother.  It was not explained how or why an inconsistent statement by the Applicant’s brother was an irrelevant consideration.

6. Further, it was contended that the Tribunal took into account, as another irrelevant consideration, the fact that the Applicant subscribed to a particular newspaper.  Likewise, it was said that the religion of the Applicant was an irrelevant consideration.  Then, in a very bald statement,, without explanation or reference to how the [alleged] mis-translation occurred or how it was now detected, it was submitted (paragraph 6):

   Many of the errors which the Tribunal has pointed to can be attributed to an error in translation.

7. After referring to the Applicant claiming that he had been questioned by police on a number of occasions, and that the Tribunal allegedly relied on inconsistency between statements made by the Applicant in interviews by the police, it was submitted (par.15) that:

   The problem here is that the translation did not properly reflect the Applicant’s statements.  Despite the translation, the fact that there were inconsistencies in the dates does not mean that the police interviews did not happen.  The Tribunal has, however, concluded that because of the inconsistencies, therefore the interviews did not happen.  This is wrong and the Tribunal has acted unlawfully.

8. At paragraph 19 of the submissions, the following is stated:

   The Tribunal here placed great weight on the fact that the statement which the Applicant provided to the police had the wrong address and the wrong date.  Once again, this was because of the incorrect translation.  The fact that the statement contained the wrong date does not once again mean that the statement was concocted, otherwise the complaints throughout these submissions, as already indicated, relate to either matters of weight as to whether the Tribunal properly considered certain kinds of evidence such as (see paragraph 9), whether the Tribunal had properly considered the medical condition of the Applicant and, having properly taken that medical evidence, being a psychological report, into account when arriving at its decision.

9. Among other comments that could be made here, this submission seems to be more a general complaint about both the process adopted by the Tribunal, and equally a complaint about the evidence relied upon and the conclusion reached.  In my view, such complaints amount to little more than impermissible merits review.  And as the High Court noted in Minister for Immigration and Citizenship v SZJSS, at [33] (relying upon earlier High Court authority): “The weighing of various pieces of evidence is a matter for the Tribunal.”[5]

   [5] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

10. In my view, absent identification of a specific error by the Tribunal, the generalised complaints about the weight attributed to evidence before the Tribunal are not made out by the Applicant.

11. Then there is this further statement in the same place in the submissions, again without reference to specific fact or relevant principle, that:

    The Tribunal failed to take account of a relevant consideration.

12. I pause here simply to note that the Tribunal’s decision, at [54] and [55], refers specifically to the evidence in relation to the Applicant’s post-traumatic stress disorder.  Accordingly, I have the greatest difficulty seeing how it can be contended that the Tribunal did not properly take this evidence into account, or take into account some other ill-defined relevant consideration.  In the face of the Tribunal’s clear comments to which I have referred, the Applicant’s complaint is again more appropriately characterised as an attempt at merits review.  It has no basis.

13. At paragraph 13 of the submissions, after again having previously raised issues regarding the misinterpretation of his claims of persecution, it is stated that:

    Here the Applicant claimed that he was the subject of persecution because of the fact that his business had been attacked.  The Tribunal, however, did not make any attempt to verify the claims of the Applicant in this regard.  Instead, the Tribunal just concluded that because the Applicant had lied about other things, therefore, the Applicant was lying about the attack on his business.

14. In my view, this submission is without foundation and has no regard to the extensive jurisprudence which details what procedural role the Tribunal has, and what responsibility it has in relation to checking or making its own inquiries.[6]

    [6] Among many places, see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [1], [4] & [21] ff (French CJ & Kiefel J), and at [83] – [84] (Gummow J).

15. In the submissions filed 26 June 2015, the primary contention seemed to be that there was some inconsistency between two High Court decisions – Eshetu and more recently in Li.[7]  I confess to having difficulty in understanding the detail of this submission and the basis for it.

    [7] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

1. It was further submitted that what the Tribunal did in the hearing in the current matter, and on the basis (it was said) of the decision in Li, leads to the conclusion that the hearing before the Tribunal was conducted “in a manifestly unfair manner”.  Exactly what was considered to be manifestly unfair was not otherwise specified or particularised.

2. It was further contended (paragraph 7 of the submissions) that:

   The Tribunal had made up its mind about the Applicant before the Tribunal began its deliberations.  The Tribunal was using the existence of an inconsistency as a basis for the refusal of the Application.

3. Again I note there is no reference to any specific fact or finding, or relevant legal authority, to substantiate the bald assertions made in this submission. 

4. The second area of principle addressed in the further submissions related to the question of “unreasonableness”.  In short, it was submitted here by the Applicant that:

   The test is now not a question of what a reasonable person would or would not do in the circumstances.  Rather, the test is an objective test; that is, whether the decision bespeaks such an error.

5. Again, respectfully in my view, this is a wholly inaccurate description of what the test for either bias is and/or the High Court jurisprudence in relation to so-called ‘unreasonableness.’[8]  For current purposes it is sufficient to recall the comments of French CJ, at [30], in Li:

   The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."

   [8] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the extended discussion of “unreasonableness” and the exercise of discretion in the plurality judgment of Hayne, Kiefel & Bell JJ at [63] – [76]. See also the further, more recent discussions, firstly by the Full Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [41] – [52] regarding principles that relate to legal unreasonableness and the exercise of discretion by a Tribunal; secondly, in the decision of Griffiths J in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 especially at [35] ff.  I note that his Honour in SZUWX also discussed at some length, beginning at [63], the High Court decision in Li.

6. Further, and not for the first time, the Applicant’s legal adviser sought to rely upon comments by Kirby J in his dissenting judgment in SGLB.[9]  He contended, amongst other things that:

   A person who is the subject of post-traumatic stress will, in all likelihood, make an inconsistent statement and that person should not be punished because of making such a statement.

   [9] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

7. Whatever is intended by this submission, again the assessment of evidence is a matter for the Tribunal.

The Minister’s Submissions

1. First, it was submitted that findings in relation to credibility are pre-eminently the preserve of the Tribunal.  Credibility findings must be made rationally and they must be based upon facts having logical and probative weight; they must not be reached in a manner giving rise to a reasonable apprehension of bias.[10]  It was submitted that there is no basis for making any such attacks against the Tribunal’s credibility findings in this matter.

   [10] See SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at 31.

2. In relation to bias, after setting out briefly the tests in relation to bias in cases such as Jia Legeng (to which I have earlier referred) and in Re Refugee Review Tribunal; Ex parte H,[11] the Minister submitted that a fair-minded and informed person would not conclude that a decision- maker would not be impartial because of the mere fact that an earlier decision by a differently constituted Tribunal had been set aside.  This is particularly the case where, as here, the Tribunal was differently constituted following the remittal.

   [11] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at 28. See also Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [41] – [44].

3. In this regard, the Minister also referred to the Full Federal Court’s comments in Northern New South Wales FM Pty Limited v Australian Broadcasting Tribunal where the Full Court said:[12]

   Justice is, in general, better seen to be done if the Tribunal is reconstituted for the purposes of the re-hearing.

   [12] Northern New South Wales FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39.

4. This is exactly what has happened here. 

5. In relation to the claim that the Tribunal took into account irrelevant considerations, amongst other decisions, the Minister relied upon the Federal Court decision in SZSHV (at [30]) to the effect that credibility findings are pre-eminently the function of the decision maker.

6. In relation to an alleged failure to consider a relevant consideration - namely, the Applicant’s diagnosed PTSD – I have already noted that the Tribunal did deal with, and had regard to, the medical evidence before it at [54] and [55] of its reasons.[13] 

   [13] Again, see the comments of Gummow J in SZGUR at [83] and [85].

7. The Minister further submitted that it was open for the Tribunal to proceed to determine for itself, having regard to the psychologist’s report put before it, whether the Applicant was able to effectively participate in a hearing.  The Tribunal clearly considered that it did.

8. In relation to issues concerning allegations of mistranslation, it is sufficient to note from the Minister’s submissions that the Tribunal firstly asked questions of the Applicant, and the Applicant provided answers that appear, on their face, to be “relevant, responsive, coherent and largely consistent” and, secondly, the Tribunal conducted its hearing with the assistance of a NAATI accredited interpreter.  In such circumstances, it is difficult to see how any contention regarding mis-translation can be made out.

9. In this regard, the Minister referred to the Full Court decision of Perera v Minister for Immigration and Multi-Cultural Affairs where it was said that any question as to an interpreter’s competence would be resolved by reference to his or her accreditation and certification.[14]  It was plainly the case that a qualified Turkish interpreter was made available and translated for the Applicant at the hearing.

   [14] Perera v Minister for Immigration and Multi-Cultural Affairs [1999] FCA 507 at [40] and [41].

10. Further submissions were filed on behalf of the Minister on 9 July 2015 in response to questions raised by the Court during the hearing, those issues being:

    (a)whether or not the High Court decisions in SZMDS and Li are relevant to this case and, if so, how;

    (b)whether or not the Tribunal erred in failing to make an express finding as to whether documents provided by the Applicant, specifically documents which purportedly related to criminal proceedings involving the Applicant, were forgeries or were otherwise fraudulently obtained;

    (c)whether or not the issue of relocation arose on the facts and should the Tribunal have considered this matter.

11. Put very shortly, the Minister submitted that neither SZMDS nor Li had any relevance to the matters before the Court in the current Application.  The Minister submitted that the only aspects of the Tribunal’s reasons which the Applicant asserted were affected by unreasonableness were those adverse inferences drawn by the Tribunal regarding the Applicant’s credibility in the light of the Applicant’s inconsistent statements.

12. The Minister submitted that the decision under review was not vitiated in any relevant way by irrationality or illogicality of the kind discussed in SZMDS, nor unreasonableness of the kind considered in Li. 

13. In relation to the second issue of whether or not any of the documents submitted by the Applicant were forgeries, the Minister submitted as follows:

    a)It is well-established that there is no obligation at common law to give written reasons for an administrative decision.

    b)The Tribunal’s obligation in this case is determined by section 430 of the Migration Act which requires the Tribunal to give a written statement for its decision on review that “sets out the findings on any material questions of fact.”

    c)The High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf, the plurality judgment of McHugh, Gummow and Hayne JJ concluded that s.430 should not be read as giving rise to an obligation for the Tribunal to make findings on every material question of fact.[15] 

    [15] Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 at [68] - [69].

14. Indeed, at [68] in Yusuf, the High Court said in relation to s.430:

    It requires no more than that the Tribunal set out the findings which it did make.  Neither expressly nor impliedly does the section require the Tribunal to make, and then set out, some findings additional to those which it actually made.

15. In this case it was clear that the Tribunal’s decision record does not contain any specific finding as to the authenticity of the documents submitted by the Applicant on 15 August 2014.  But nor was there any statutory obligation for the Tribunal to do so, it was submitted.  In short, the Minister submitted that the Tribunal was not obliged to make any express finding as to the genuineness of the documents and the findings that were made were free from jurisdictional error.

16. In relation to the third issue, namely, relocation, the Minister noted that this issue did not arise on any of the papers filed or claims made by the Applicant.  However, in order to assist the Court the Minister simply submitted, amongst other things, that the issue of internal relocation did not arise in this matter because the Tribunal found that no protection obligation arose.

Disposition

1. In Minister for Immigration and Citizenship v SZGUR, at [67], Gummow J said:

   An Applicant in the [Federal Circuit] Court for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case.

2. Applying his Honour’s statement of general principle to the current matter, in my view, the Applicant has not established any basis for the Court finding any jurisdictional error arising out of the Tribunal’s reasons, including the process adopted at the hearing before it. 

3. Consistently throughout these reasons I have noted and commented on (a) the lack of particularity in the Applicant’s claims, (b) the lack of reference to specific facts, (c) the lack of reference to relevant legal principle, and (d) the invariably, broad – indeed usually bald – unsubstantiated and or unsupported assertions and contentions made in the Applicant’s submissions.  I have also noted that the Applicant’s grounds of review, and likewise his submissions, proceed by way of providing a general critique of the Tribunal’s reasons, and that such an approach tends to lead to the Court finding (as I do) that the claims are more about impermissible merits review rather than discrete and properly formulated claims about the Tribunal’s errors that might reasonably or arguably sustain a claim for jurisdictional error.

4. In addition to the comments made in the course of these reasons, I also accept the statements of law and principle set out in the Minister’s submissions. 

5. Accordingly, the Application must be refused with an order for costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.  The Court so orders.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:         18^th December 2015