DCZ16 v Minister for Immigration

[2018] FCCA 1849

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCZ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1849

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal provided the applicant with an opportunity to provide evidence – whether the Administrative Appeals Tribunal’s decision was made in good faith – effect of certificate issued under section 438 of the Migration Act1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 476
Migration Regulations 1994 (Cth), reg.2.01, sch.1

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
AVO15 v Minister for Immigration and Border Protection [2017] CA 566
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Applicant: DCZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2884 of 2016

Judgment of: Judge Emmett

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Sydney

Delivered on: 10 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2884 of 2016

DCZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 20 September 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 6 March 2013 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The applicant is a citizen of Nepal who is of Christian faith and Newari ethnicity, who fears harm from the police in Nepal due to his religion.

Background

1. The applicant arrived in Australia on 20 March 2007, having departed legally from Nepal on a passport issued in his own name and a Student visa. The applicant subsequently held a series of Student visas and Bridging visas.

2. On 5 November 2012, the applicant lodged an application for a Protection Visa with the then Department of Immigration and Citizenship (“the Department”).

3. On 6 March 2013, the Delegate refused the applicant’s application for a Protection Visa.

4. On 30 March 2013, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal (“the First Tribunal”).

5. On 17 February 2014, the First Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.

6. On 17 March 2014, the applicant filed an application in this Court seeking judicial review of the First Tribunal’s decision.

7. On 25 February 2016, the Federal Circuit Court set aside the Delegate’s decision and remitted the matter to the Tribunal for reconsideration.

8. On 20 September 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.

9. On 21 October 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

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

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

Summary of Applicant’s Claims and Tribunal Decision

1. The applicant’s claim for protection, and the Tribunal’s decision record are accurately summarised in the written submissions of the first respondent as follows:

   “Applicant’s claims for protection

   7 The applicant’s claims for protection centred on his fear of harm from the police and the government in Nepal due to his Christianity, and his marriage to someone outside the Newari community. Those claims were contained in: his protection visa application (CB 21-25), a statement provided to the Department (CB 30-31), an interview with the delegate and oral evidence given at both Tribunal hearings. In summary, those claims were as follows:

   7.1 After arriving in Australia in 2007, the applicant married a Thai citizen in 2010 (CB 30).

   7.2 Whilst the applicant had previously been a Hindu, he had converted to Christianity and attended a church in Liverpool every Sunday, where he played in the church band. The applicant also handed out pamphlets every Saturday opposite his church (CB 137).

   7.3 In 2012, the applicant and his (then) wife travelled to Nepal together. The applicant’s family were unhappy with the marriage and the applicant’s father asked him to leave his marriage and denounce Christianity. The applicant’s father, who was a police officer, told the applicant that he needed to marry within his caste (the Newari people). When the applicant refused to denounce Christianity or leave his wife, his father threatened to report him to the police (CB 30).

   7.4 The applicant promoted Christianity to his siblings and ignored the discouragement of both his father and elders in the community (CB 30).

   7.5 The applicant and his father had an uneasy relationship and had previously clashed. On 14 October 2012, the applicant’s brother observed his father and uncle reporting the applicant to the local police for having changed religion, disobeying the rules of the Newari community and disrespecting family beliefs. On 15 October 2012, the police came to arrest the applicant but he had already flown back to Australia without his father noticing. The police are still searching for the applicant (CB 31).

   7.6 The applicant and his former wife divorced in 2013 and the applicant subsequently remarried a New Zealand citizen, with whom he had a child. The applicant had considered applying for a spousal visa but did not want to go offshore and be separated from his wife and child (CB 186).

   Tribunal decision

   8 The Tribunal noted that it had listened to the audio of the applicant’s interview with the delegate and his hearing before the RRT, and that where relevant, the evidence given by the applicant on those occasions appeared in the Tribunal’s decision record (CB 180, [4]-[5]).

   9 The Tribunal noted that it had discussed with the applicant material that was subject to a non-disclosure certificate issued pursuant to s 438 of the Act (CB 186, [43], [92]). The Tribunal noted that it had told the applicant that, whilst it had considered the material covered by the certificate, that material was not relevant to the applicant’s claims for protection (CB 186, [43], [92]). The Tribunal further noted that it had “outlined the substance of the information” covered by the certificate to the applicant and invited him to comment, which he declined to do (CB 186, [43]).

   10 The Tribunal found that aspects of the applicant’s evidence had been consistent over time and for that reason, accepted that the applicant had converted from Hinduism to Christianity since being in Australia and had attended church (CB 187, [45]). The Tribunal further accepted that the applicant did not want to be separated from his wife and child if he was returned to Nepal.

   11 However, the Tribunal noted that at his hearing before the Tribunal, the applicant had given significantly different evidence to that which he had provided in his visa application and in his hearing before the RRT (at CB 187-188, [48]-[50], [57], [62]-[63]). Thus, whilst the Tribunal accepted aspects of the applicant’s claims, it otherwise found that the applicant was not a credible witness in relation to significant parts of his claims and evidence (CB 187, [46]).

   12 On the basis of its adverse credibility findings and the applicant’s lack of knowledge of the Bible, which the Tribunal found was inconsistent with his claimed history of proselytising, the Tribunal rejected the following aspects of the applicant’s claims:

   12.1 His claimed interaction with his father in Nepal in 2012 (CB 188, [58]).

   12.2 His father having sought a warrant for the applicant’s arrest or that the applicant fled Nepal for that reason (CB 188, [58]).

   12.3 That he had proselytised in either Nepal or Australia, or would do so in the future (CB 189-190, [61], [65]).

   13 The Tribunal noted that the applicant’s application had been remitted for reconsideration on the basis of the RRT having relied on incorrect country information in support of its finding that the applicant would not face a risk of harm arising out of proselyting (CB 180, [7]; 192, [69]). However, on the basis of its finding that the applicant had not proselytised in the past and would not do so in the future, the Tribunal found that the applicant did not face a risk of harm for this reason (CB 192, [70]-[71]).

   14 With respect to the applicant’s conversion to Christianity and attendance at church, which the Tribunal accepted would continue upon his return to Nepal, the Tribunal noted the applicant’s evidence that he had been able to attend church prior to coming to Australia (CB 192-3, [72]). The Tribunal referred to country information (including information issued by DFAT), which indicated that whilst Christians faced some low-level discrimination, they were generally able to worship without interference (CB 193-4, [74]-[78]). On the basis of the country information and its earlier finding that the applicant had not faced difficulties in the past due to his Christianity, the Tribunal found that any discrimination that the applicant might face on return to Nepal would not amount to serious or significant harm for the purposes of the Act (CB 194, [79]-[80]).

   15 In relation to the applicant’s claim to fear harm from his father (separate to the claimed incidents in 2012), the Tribunal accepted that the applicant had had a hostile relationship with his father but noted its earlier finding that the applicant had not faced any difficulties from his father when he returned to his home village in 2012, as well as the applicant’s delay in having applied for protection (CB 195, [83]). For those reasons, the Tribunal found that the applicant did not face a risk of harm from his father (CB 195, [84]).

   16 With respect to the applicant’s marriages to people outside of both his caste and the Newari community, the Tribunal referred to its earlier finding that the applicant had not faced difficulties when he travelled to Nepal in 2012 with his former wife (CB 195, [85]-[86]). The Tribunal further noted that the applicant had not claimed to fear harm as a result of his current marriage to a New Zealand citizen (CB 195, [86]). For those reasons, the Tribunal rejected the applicant’s claims to fear harm on this basis (CB 195, [86]).

   17 In relation to the applicant’s claim that he did not want to be separated from his wife and child, the Tribunal referred to SZRSN v MIAC [2013] FCA 751 in support of its finding that whilst any separation from his wife and child would be difficult for the applicant, this did not constitute a real risk of significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal also found that any such difficulties would not be for an essential and significant Convention reason (CB 196, [88]-[91]).

   18 On the basis of these findings, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations under either s 36(2)(a) or 36(2)(aa) of the Act and, accordingly, affirmed the decision to refuse the grant of a protection visa (CB 196-7, [93]-[100]).”

The proceeding before this Court

1. The applicant was unrepresented before this Court.  

2. On 23 February 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. The applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

4. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in an Application filed on 21 October 2016 as follows:

   “1. Tribunal fail to address the problems faced by Christian convert in Nepal.

   2. The decision was not made in good faith.

   3. The tribunal fail to provide the opportunity to provide evidence to support my case.

   4. AAT failed to address the Nepali culture & tradition is lot different than Australia.”

   (Errors in original)

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. The grounds were unsupported by particulars, evidence or written submissions. Orally, the applicant submitted that his family had given him a bad time, that he had converted from Hinduism to Christianity in Australia, that Hindus in Nepal are totally against Christians, that Nepal does not accept all religions and that his claims were true.

Ground 1 and Ground 4

1. Ground 1 asserts that the Tribunal failed to address problems faced by Christian converts in Nepal. The Tribunal’s decision record does not support such an assertion.

2. The Tribunal’s decision record notes with specificity independent information that referred to the prosecution of some of those proselytising in Nepal. The Tribunal also identified information that the 20 September 2015 Nepalese Constitution prohibits converting other people from one religion to another or disturbing the religion of others, and notes that violations are punishable by law.

1. The Tribunal did not accept that the applicant had ever proselytised or undertaken any activities to try to convince others to become Christians, either in Nepal or in Australia. The Tribunal did not accept that the applicant holds a desire to convince others to become Christian.

2. The Tribunal accepted that the applicant is a Christian and converted to Christianity from Hinduism in Australia. The Tribunal did not accept that the applicant suffered past harm as claimed when he returned to Nepal in 2012. The Tribunal noted that the applicant had been able to explore Christianity in Nepal, but now fears return because he talks openly of Christianity. 

3. The Tribunal noted that in his written protection claims, the applicant asserted that he had direct contact with his father on his trip to Nepal in 2012. The Tribunal also noted that at the First Tribunal hearing, the applicant had said he had tried to speak to his father about Christianity when he returned to Nepal in 2012. However, at the hearing before the Tribunal, the applicant stated that the last time he spoke with his father was in 2010 and that he had not seen his father since that time. The Tribunal noted that it raised that inconsistency with the applicant and noted the applicant’s response that he was confused but that he was not lying. The Tribunal did not accept that explanation. The Tribunal found this inconsistency to be significant, leading the Tribunal to find that the applicant was not a credible witness.

4. The Tribunal found further inconsistencies in the applicant’s evidence in relation to his father’s application for an arrest warrant for the applicant on his return to Nepal in 2012. The Tribunal also expressed concern regarding the lack of any documentary evidence of the existence of such an arrest warrant.

5. The Tribunal also found inconsistencies in respect of the applicant’s claims that he engaged in proselytising on his return to Nepal in 2012. Moreover, the Tribunal found the applicant to have a lack of knowledge of basic aspects of the Bible.

6. These concerns led the Tribunal to reject the applicant’s claims that he has, or will ever, proselytise, hand out pamphlets, or speak to others to convince them to become Christian were he to return to Nepal.

7. In making its adverse findings the Tribunal stated that it was sensitive to the various cultural differences that can impact on an applicant’s responses to questioning and referred to the Tribunal’s “Guidance on the Assessment of Credibility”. The Tribunal also stated that it had allowed for the possibility of discrepancies arising because of genuine lapses of memory and nervousness. The Tribunal also noted that the hearing before it was conducted in English at the request of the applicant and that the applicant was able to discuss his claims, understand questions asked and respond appropriately.

8. The Tribunal found the applicant’s return to Nepal in 2012 to be inconsistent with a fear of serious harm or significant harm.

9. As mentioned above, the Tribunal had regard to country information as to the treatment of Christians in Nepal and the treatment of those who convert to Christianity in Nepal. The Tribunal referred to country information that stated that the new Nepalese Constitution, adopted in September 2015, established Nepal as a secular state and provided for the right to profess and practice one’s own religion. The Tribunal also referred to country information that the law in Nepal allows personal conversion to a different religion and that there were no reports of attempted forced conversions to Hinduism.

10. The Tribunal also noted country information disclosing that in 2014: minority religious groups faced some discrimination from the government; proselytising was prohibited; and, that some religious minorities occasionally reported official harassment.

11. The Tribunal did not accept that any difficulties the applicant may face in Nepal as a Christian, a Christian convert and a Christian who attends Church rise to the level of a real chance of serious harm or a real risk of significant harm.

12. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

13. In the circumstances, the applicant’s assertions in Grounds 1 and 4 that the Tribunal failed to address the problems faced by a Christian convert in Nepal and failed to address the differences in Nepali and Australian culture and tradition are not made out and do not demonstrate any jurisdictional error on the part of the Tribunal.

14. The applicant’s complaints in Grounds 1 and 4 appear more to be a disagreement with the findings and conclusions of the Tribunal. As such, they invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

15. Accordingly, Grounds 1 and 4 are not made out.

Ground 2

1. Ground 2 makes the bare assertion that the Tribunal’s decision was not made in good faith without further particulars, the assertion does not identify any error capable of review by this Court.

2. If Ground 2 is intended to allege bias on the part of the Tribunal, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

3. The applicant was directed on 23 February 2017 by this Court to file and serve any affidavit containing additional evidence to be relied upon by 20 April 2017. The applicant was directed that any evidence of the Tribunal hearing was to be presented as a transcript verified by affidavit. If the applicant wished to rely on a tape recording of the Tribunal hearing, the applicant was directed to give notice to the first respondent and the Court by 20 April 2017. However, no step was taken by the applicant to rely on any such evidence.

4. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1). In the circumstances, the Court accepts as accurate the Tribunal’s summary of the applicant’s oral evidence and exchanges it had with the applicant at the Tribunal hearing.

5. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

6. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

7. Moreover, there is nothing on the face of the Tribunal’s decision record or the conduct of its review to suggest that the Tribunal did not conduct its review or make its decision in good faith.

8. Accordingly, Ground 2 does not disclose any jurisdictional error on the part of the Tribunal.

Ground 3

1. Ground 3 asserts that the Tribunal failed to provide the applicant an opportunity to provide evidence in support of his case.

2. Again, this assertion was not supported by any particulars, evidence or submissions.

3. On 19 July 2016, the Tribunal wrote to the applicant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicant to appear before the Tribunal on 12 September 2016 to give evidence and to present arguments relating to the issues arising in his case. The letter invited the applicant to send to the Tribunal any additional information or any new information which he wished the Tribunal to consider. The applicant declined to send any further information.

4. The applicant attended the hearing on 12 December 2016 with his new wife who is a citizen of New Zealand.

5. The applicant has not provided any evidence to suggest that he requested any additional time to provide further information to the Tribunal.

6. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

7. In the circumstances, on the evidence before this Court, the applicant was given the opportunity to provide evidence in support of his case.

8. Accordingly, Ground 3 is not made out.

Section 438 certificate

1. Whilst not pleaded, the first respondent brought to the Court’s attention that on 10 March 2016 a certificate and notification regarding the disclosure of certain information under s.438 of the Act was issued. The relevant folios were provided to the Court in a sealed exhibit and no privilege was claimed in respect of the documents.

2. The reason given on the certificate for the non-disclosure of the documents was because it would be contrary to the public interest because the folios contained information relating to an internal working document and business affairs.

3. The documents covered by the certificate are an application validity check and identification test; interpreter information; a previous disclosure checklist; and, departmental emails regarding the applicant’s application.

4. Such documents would not appear to be caught by the requirements of s.438 of the Act. The first respondent accepts that the s.438 certificate is invalid.

5. The Tribunal’s reasons make clear that the existence of the section 438 certificate was disclosed to the applicant and particulars of the material the subject of the certificate given to him for comment. Further, the Tribunal’s reasons make clear that it did not act on the certificate or any of the documents to which it related and found that they were irrelevant to its assessment of the applicant’s claims for protection.

6. The documents lacked any connection to the applicant’s claims and were of no, or only passing contextual relevance, to the review.

7. In the circumstances, the Tribunal did not act on the certificate and the applicant did not lose any opportunity to advance his case as a result of any technical breach of the disclosure obligations arising under the Act (see AVO15 v Minister for Immigration and Border Protection [2017] CA 566 at [91] per Barker J). The applicant has not experienced any practical injustice or detriment and does not assert otherwise (see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  10 July 2018