DGK16 v Minister for Immigration
[2019] FCCA 1462
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGK16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1462 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s fear of harm in China for religious reasons – Administrative Appeals Tribunal did not believe applicant and made adverse credibility findings – applicant claimed denial of procedural fairness and legal unreasonableness constituting jurisdictional error affected the adverse decision of the Administrative Appeals Tribunal- Grounds not made out – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 137J, 424, 424A, 425 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 | ||
| Applicant: | DGK16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3009 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 May 2018 |
| Date of Last Submission: | 30 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr J. Kay-Hoyle of Counsel |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 27 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3009 of 2016
| DGK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of China aged 26 years, having been born on 22 November 1992.
By Amended Application filed in this Court on 27 February 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 10 October 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 11 August 2016 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 3 July 2010 as the holder of a Student (Class TU) (Subclass 571) visa. This visa was automatically cancelled on 10 November 2012 (under s.137J of the Migration Act 1958 (Cth) (the Act) because he was a non-complying student), when he became an unlawful non-citizen until being located by the New South Wales Police during a routine traffic stop on 1 April 2016 and was then detained at Villawood Immigration Detention Centre (Villawood). On 2 April 2016 the Applicant attended a compliance client interview with an officer of the Department of the Minister (compliance client interview).
The Applicant then lodged his Protection visa application on 28 April 2016 and identified his religion as Buddhist (Yi-Guan-Dao).
Claims for Protection
At the compliance client interview the Applicant said that his religion was Buddhism, he had previously held a Student visa but he did not go to classes, that he did not like China, that Chinese food is “all fake” and that he intended to apply for a Protection visa as he could not return to China because he had engaged in a fight with friends and would die there.
In a Statement dated 12 April 2016 (Statement) forming part of his Protection visa application the Applicant then claimed as follows:
a)he was born in Fuqing City, Fujian, China;
b)he fears being persecuted by the Chinese Government because of his Yi-Guan-Dao (or Tian Dao, or Tian Do) religion (Yi-Guan-Dao);
c)his parents had sent him to Australia to study in July 2010, where he commenced studies in High School but was unable to complete Year 11. He then worked for a removal company, and then began gyprocking from November 2012;
d)he told his parents of his cessation of studies in around May 2011, and since 2012 they have been urging him to return to China to work on a farm with them, but he kept on making excuses not to do so;
e)in March 2015 through a workmate he met Sister Alice (a pseudonym), who was a devout follower of Yi-Guan-Dao. Sister Alice prayed to a Guanyin statue, amongst others, a deity in which his parents also believed. Sister Alice told him of how practising Yi-Guan-Dao saved and prolonged her life when she had lymphatic cancer. At that time he was suffering a variety of symptoms due to his staying up late at night playing video games;
f)at Sister Alice’s invitation he attended a JiRu temple at Belmore (JiRu temple), a place where he felt at home. He found that when attending services at this temple his desire to play online video games subsided and on days in which he attended he was able to sleep before 11:00pm;
g)on 2 May 2015 he undertook an initiation ceremony conducted by a Master Uw (a psuedonym), and from that date started practising as an official Yi-Guan-Dao follower;
h)three days after the commencement of his detention at Villawood in April 2016 he first learned that Yi-Guan-Dao was vilified and branded a cult by the Chinese Communist Party in the early 1950s, and as a result Yi-Guan-Dao was ultimately suppressed, with senior members having been sentenced to death without trial;
i)when he joined Yi-Guan-Dao he did not realize that the Yi-Guan-Dao belief was regarded as a reactionary organization in China and its followers could be condemned or even killed and that all Yi-Guan-Dao temples were demolished in the 1950s;
j)there are no longer any Yi-Guan-Dao temples in China, so that to conduct his religious activities he would need to set shrines in a private house, which shrines are very unique and could be easily recognised;
k)some of his family members are members of the Chinese Communist Party, and officers of the village committee visit the local residents often, so it would be impossible for him to conceal his identity as a member of Yi-Guan-Dao were he to return to China;
l)he would be prosecuted by the Bureau of Religion and the Bureau of Public Security in accordance with the regulations of the People’s Republic of China on Punishing Reactionaries, and sentenced to a fixed term imprisonment of not less than three years; and
m)when he was located by police and taken to Villawood he received questioning. At this time he was filled with fear for his possessions and at the compliance client interview thoughtlessly referred to a fighting incident in China and poisonous food in China. He was unaware that his religious belief was outlawed in China while being questioned.
The Applicant’s Protection visa application also included a statutory declaration dated 11 April 2016 made by Sister Alice (but in reality more a written statement than technically a statutory declaration) which stated that she was “a clergy of JiRu Buddhist Temple” and that the Applicant was “a pious Tian Dao Cultivator” and proselytiser. There were also submitted at the same time two further statutory declarations which spoke of the Applicant’s connection with the JiRu temple and of him being an actively involved practitioner of Yi-Guan-Dao at the JiRu temple (collectively, statutory declarations).
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 30 June 2016 together with his migration agent.
I note that at the hearing in this Court it was agreed by Mr Dobbie, who appeared for the Applicant, and Mr Kay-Hoyle of Counsel, who appeared for the Minister, that the following paragraph from the Decision Record of the Delegate sufficiently set forth for present purposes the relevant facts concerning the Yi-Guan-Dao religion:
In 1950, [Yi-Guan-Dao] was branded and vilified as a cult by the Chinese Communist Party. In October 1950, the Chinese Communist Party proclaimed that [Yi-Guan-Dao] was a reactionary religious organisation with the intent to overthrow the new government. A public campaign was staged to disband and crack down on [Yi-Guan-Dao] practitioners. Numerous senior [Yi-Guan-Dao] members were sentenced to death without a trial taking place. Ordinary [Yi-Guan-Dao] members were sentenced to fixed term imprisonment of not then less than three years. By the end of 1952, a total of 2.4 million [Yi-Guan-Dao] cultivators were supressed. Currently [Yi-Guan-Dao] is identified as a reactionary sect using feudalism and superstition to subvert the government.
In the result the Delegate made the following findings of fact:
a)that the Applicant was not a Yi-Guan-Dao practitioner;
b)that the Applicant had not attended the JiRu temple; and
c)that the Applicant had not attended activities associated with Yi-Guan-Dao.
Accordingly, the Delegate was not satisfied that Australia had protection obligations to the Applicant under either the Refugees Convention criterion pursuant to s.36(2)(a) of the Act or the complementary protection criterion pursuant to s.36(2)(aa) and refused to grant to him the Protection visa.
Because it is relevant to the Grounds considered below it is convenient to note at this point that the Delegate recorded in his Decision Record that at the interview with the Applicant:
a)he had asked the Applicant to identify the address of the JiRu temple, and the Applicant had responded that he did not know the address, but could sketch a map;
b)he had asked the Applicant to describe the outside of the JiRu temple, and the Applicant had responded that it was a plain three storey building with no distinguishing features outside the building that indicated that it was a temple;
c)after the natural justice break during the interview the Applicant on return said that he wanted to clarify three matters, one of which was that the JiRu temple in Belmore had four letters in Chinese on its front saying that it was a ‘Ji Ru Buddhist Temple’;
and the Delegate concluded that:
d)“The applicant was unable to describe the outside of the JiRu temple until after the natural justice break was taken… If he had been attending the temple regularly, then it would be reasonable to expect him to have described the outside of it when asked and would not have had to wait until after the natural justice break”.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 17 August 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time.
The Applicant, together with his migration agent, appeared at a hearing before the Tribunal on 27 September 2016 to give evidence and present arguments, with the assistance of an interpreter in the Mandarin and English languages.
On 29 September 2016, two days following the Tribunal hearing, the Tribunal sent to the Applicant an invitation to comment on or respond to information pursuant to s.424A of the Act (s.424A Letter). This letter provided particulars of the Applicant’s detention and claims at the compliance client interview and of how searches by the Tribunal had revealed that there did not appear to be a temple where the Applicant had described the JiRu temple as being located, and that this suggested that the information provided by the Applicant in this regard had been fabricated. It informed the Applicant that the totality of the information provided in the invitation could lead the Tribunal to find that the Applicant had fabricated his claims to be a Yi-Guan-Dao practitioner after he was detained by the Department of the Minister, and that he would not fear harm in China on that basis.
By email dated 6 October 2016 the Applicant’s migration agent responded to the s.424A Letter (s.424A Response) with a translated statement of the Applicant and a series of photos of the asserted JiRu temple said to be situate at 5A Hugh St, Belmore. The statement referred to a ‘Master Nal’ (a pseudonym) who would confirm that the Applicant was a member of the JiRu temple.
At [5] – [15] of its Decision Record the Tribunal recorded the Applicant’s claims and documentary evidence in support of his Protection visa application up to the date of the Tribunal hearing.
At [19] – [20] the Tribunal recorded as follows in relation to the s.424A Letter and the s.424A Response:
[19] Following the hearing, the Tribunal wrote to the applicant pursuant to s.424A. In the s.424A letter, the applicant was invited to comment or respond on information in relation to his initial evidence to the Department which indicated that he did not raise any claims to be of the Yi Guan Dao religion until sometime after his detention. The applicant was also invited to comment or respond on information indicating that the main centre for Yi Guan Dao is in Brunswick, Victoria and the website of the centre, contains no details of the Yi Guan Dao temple in Belmore. The applicant was also advised that the Tribunal could find no reference to the Yi Guan Dao temple in Belmore and the Tian Ci Holy Dao Incorporated is registered at the address of 5A Hugh Street, Belmore. The applicant was also advised that during a telephone call to the Public Officer of the organisation at that address in 2011 an officer of the Tribunal was told that it follows the teachings of Confucius and Lao Tze and the Dao taught there is different from I-Kuan-Tao (Yi Guan Dao).
[20] In a response, received on 6 October 2016, the applicant provided a statement addressing the issues raised above. The applicant also provided a photograph with a plaque above it saying JiRu Buddhist temple; a photograph of 5A Hugh Street; and a photograph of the inside of a temple, showing statues of the Goddess of Mercy and Buddha.
At [26] of its Decision Record the Tribunal recorded that it did not accept the Applicant’s various explanations for failing to disclose that he was a Yi-Guan-Dao practitioner at the compliance client interview and that his evidence was indicative that he had fabricated his claims in that regard after he was detained following a routine traffic inspection.
At [28] and [29] the Tribunal recorded that it did not accept the Applicant’s explanation as to why he would not know that Yi-Guan-Dao was illegal in China until after he was detained at Villawood, having regard to the fact that he had grown up in China and would have known that many religions in China are proscribed.
At [31] of its Decision Record the Tribunal recorded that the Applicant’s delay in lodging his Protection visa application was further indicative of the fabrication of his claims after he had been detained. It noted the Applicant’s evidence that he had arrived in Australia on a Student visa in 2010 and had last attended classes at the end of February 2011. At [32] the Tribunal noted the Applicant’s evidence that after he had ceased his studies in early 2011 he had remained working in Australia for another five years prior to his detention in 2016 and its view that the Applicant would have continued to remain in Australia unlawfully had he not been detected and detained in April 2016.
At [33] the Tribunal noted that it considered the Applicant’s evidence regarding his attendance at the JiRu temple in Sydney as problematic for the reasons then given at [34] – [36]. However, at [37] the Tribunal accepted that there was a temple by the name of JiRu at 5A Hugh St, Belmore that may at times practise the Yi-Guan-Dao religion, but did not accept that the Applicant had ever had any genuine involvement with the Yi-Guan-Dao religion.
At [38] of its Decision Record the Tribunal recorded that the assertions in the statutory declarations did not overcome the Tribunal’s earlier substantive findings. At [40] the Tribunal recorded its view that the makers of the statutory declarations “… asserting that the applicant is a Tian Dao practitioner have been prepared to provide false evidence in an attempt to assist the applicant” and that it did “not accept that the applicant ever attended the JiRu temple or that he was ever initiated/ inducted into the Tian Dao religion at the JiRu temple in Belmore or that he ever proselytised or attended any activities at the JiRu temple in Belmore”.
At [42] the Tribunal summarised its conclusion that the Applicant had fabricated his claims by reference to the circumstances surrounding the lodgement of his Protection visa application, including:
a)the circumstances surrounding the lodgement of the Protection visa application, including the considerable delay;
b)the fact that the application was made after the Applicant was detained;
c)his failure to make any claims relating to Yi-Guan-Dao at the compliance client interview; and
d)the evidence in relation to his attendance at the JiRu temple.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
At the hearing Mr Dobbie pressed only Grounds (1)(B), (1)(C), (2)(B), (2)(C), (2)(D), (2)(E)(i) and (5).
The Grounds relied upon by the Applicant are thus as follows:
1. The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness
Particulars:
(B) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness, thereby committing jurisdictional error, because:
(i) The Tribunal found that the persons who provided statutory declarations asserting that the Applicant is a Yi Guan Dao practitioner have been prepared to provide false evidence in an attempt to assist the applicant. (CB206 at [40])
(ii)The Tribunal failed to accord the Applicant procedural fairness by not putting to him that it considered that those persons were prepared to provide false evidence in an attempt to assist the Applicant.
(C) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness, thereby committing jurisdictional error, because:
(i) The Tribunal failed to put to the Applicant that it considered that his Yi Guan Dao membership card was fabricated. (CB206 at [40])
2. The decision of the Second Respondent is unreasonable, irrational or arbitrary
Particulars:
(B) The decision of the Second Respondent is infected with jurisdictional error because it is unreasonable, irrational or arbitrary:
(i) The Tribunal failed to make a critical enquiry, being an enquiry to [Master Nal] and or to [Sister Alice], in order to determine if the Applicant had been inducted into Yi Guan Dao on 2 May 2015 and or that he practiced the religion, as claimed (some 10 months before his detention and application for a Protection visa).
(C)The decision of the Second Respondent is infected with jurisdictional error because it is unreasonable, irrational or arbitrary:
(i) The Tribunal found that there is a temple by the name of JiRu at 5A Hugh Street, Belmore. Despite finding this, the Tribunal required that
... a temple which regularly conducts such activities and organizes such events would have some means of the public obtaining information regarding the address and location of the temple and a means of publicizing these events. Thus .. the Tribunal does not accept that it exists in a formal manner or that it participates in the type of activities described by the applicant. (CB205- CB206 at [37])
(ii) It is unreasonable, irrational or arbitrary to find that, just because the Tribunal was unable to find the 'means' in the reasons extracted above, the temple did not carry out the activities described by the Applicant.
(iii) It is also unreasonable, irrational or arbitrary for the Tribunal to assume that the temple should have some means of the public finding out about the temple and its activities, and especially so, given the religion is proscribed in China.
(D) The decision of the Second Respondent is infected with jurisdictional error because it is unreasonable, irrational or arbitrary:
(i) The Tribunal required that the Applicant give consideration as to whether Yi Guan Dao was proscribed in China before he chose to follow that religion (CB203 at [29]). By so imposing that constraint, the Tribunal became the arbiter of faith, which was either arbitrary, unreasonable or irrational.
(ii) It was also arbitrary, irrational or unreasonable for the Tribunal to require that someone give consideration to whether a religion is proscribed before following a religion.
(E) The decision of the Second Respondent is infected with jurisdictional error because it is unreasonable, irrational or arbitrary:
(i)The Tribunal found that there had been considerable delay in lodging the application (CB207 at [42]), when there was no such considerable delay, the Applicant adopting Yi Guan Dao on 2 May 2015, and the Protection visa being lodged on 28 April 2016, with a supporting statement dated 12 April 2016.
5. The Second Respondent failed to have proper regard to an integer of a claim made by the Applicant
Particulars:
(A) The Second Respondent committed jurisdictional error by failing to have proper regard to an integer of a claim made by the Applicant:
(i) The Tribunal found that the Applicant's:
... lack of knowledge of the sign on the building and the address of the building when asked during the Departmental interview is indicative of the fact, when combined with other problematic aspects of his evidence, that he did not at any time attend the temple. (CB206 at [40] [39])
(ii) However, the Applicant did say during the Departmental interview that there was a sign on the front of the building. (CB 116)
Consideration
Ground 1(B)
As this Ground and the following Ground relate to [40] of the Decision Record of the Tribunal it is appropriate to set that paragraph out:
[40] As discussed during the Tribunal hearing, the applicant's ability to obtain a membership card which states that he was inducted into the religion in mid 2015 does not in itself establish his involvement in Tian Dao. In light of the findings made above, the Tribunal is drawn to the conclusion that the applicant's card was fabricated after he was detained in an attempt to assist him to manufacture claims for protection in Australia, and the persons who have written statutory declarations asserting that the applicant is a Tian Dao practitioner have been prepared to provide false evidence in an attempt to assist the applicant. The Tribunal does not accept that the applicant ever attended the JiRu temple or that he was ever initiated/inducted into the Tian Dao religion at the JiRu temple in Belmore or that he ever proselytised or attended any activities at the JiRu temple in Belmore.
This Ground appears to assert (as amplified by the Applicant’s written Outline of Submissions) that the Tribunal breached the procedural fairness requirements in s.425(1) of the Act in finding at [40] of its Decision Record that the makers of the statutory declarations had been “prepared to provide false evidence in an attempt to assist the applicant”, without putting him on notice that it was considering so finding prior to the date of the Decision Record, so that he could have an opportunity to respond.
The procedural fairness requirements of s.425(1) of the Act were considered by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).
The principles established by SZBEL and their application were stated by Griffiths J in BAZ15 v Minister for Immigration [2018] FCA 230 at [20] – [22] as follows:
[20] As at the date of the Tribunal’s decision, s 425(1) of the Act provided:
425Tribunal 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.
[21]This provision was considered in some depth by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. The important principles established in that decision may be summarised as follows:
(a)a review applicant is entitled to assume, absent any statement by the review tribunal to the contrary, that the issues on the review are those which the delegate considered to be dispositive (at [35]);
(b)if the issues which arise on the review are considered by the review tribunal to be different from those before the delegate, the review tribunal is required to take steps to draw the relevant issues to the review applicant’s attention (at [35]); and
(c)it is a matter for the review applicant to establish the claims that are made and it is not useful to speak in terms of “onus of proof”. The Act assumes that issues can be identified as arising in relation to a decision under review and, while those issues may extend to all aspects of a protection visa applicant’s claim, they need not. Significance must attach to the terms of s 425(1) and its reference to the applicant being invited to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [40]).
[22]As Ms Laing (who appeared for Minister) submitted, other case law establishes the following relevant principles:
(a) s 425 does not impose an obligation on the review tribunal “to ensure that an applicant makes the best of the invitation to attend the hearing” (SZTXE v Minister for Immigration & Border Protection [2015] FCA 493; 232 FCR 433 at [18] per Flick J);
(b)the provision does not oblige the review tribunal to “actively assist the applicant in putting his or her case” (Minister for Immigration& Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [36] per Gray, Cooper and Selway JJ);
(c)the review tribunal is not obliged by s 425 to carry out an inquiry to identify what the review applicant’s case might be (SZNTO v Minister for Immigration & Citizenship [2010] FCA 183; 114 ALD 129 at [34] per Yates J). It is the review applicant’s responsibility to present whatever evidence or argument in support of his or her case, and the review tribunal must then determine whether that case has been made out (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ); and
(d)the review tribunal is not obliged “to prompt and stimulate an elaboration which the applicant chooses not to embark on” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60; 77 ALJR 1909 at [58] per Gummow and Heydon JJ).
It is further relevant to note at this point that it is well-established that the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:
[13]The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.
However, it is also of course the case that credibility findings of the Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 at [15] per Flick J.
In my view this Ground is not made out. The simple fact of the matter is that the Delegate completely rejected the Applicant’s claims to protection: see [11] above. Further, the claims made in the statutory declarations were substantially rejected by the Delegate on the basis of the Applicant’s own evidence at the interview.
First, the Delegate at interview asked the Applicant about his proselytising activities, and in response he said that he had spoken to three of his friends in order to encourage them to attend the JiRu temple. The Delegate then asked whether the Applicant had spoken to any other people in addition to these three friends, and he replied in the negative. The Delegate then stated (as recorded at CB115):
It is possible that the applicant spoke to three friends about Tian Do. Aside from this, he said that he has not proselytised to anyone else. According to the Statutory Declaration provided by [Sister Alice] and [Mr WYH] the applicant was proselytising the Tian Do faith. Based on the applicant's response however, it does not appear that he has been engaging in proselytising to others, apart from three friends. Therefore, I do not accept that the applicant was proselytising to others about the Tian Do faith.
Second, later in his Decision Record the Delegate stated (as recorded at CB117):
The applicant provided a copy of his Tian Do membership card as evidence of belonging to the faith. Also submitted were three testimonies from fellow adherents of the faith. In the testimonies, it is stated that the applicant has been involved in proselytising, has [been] attending dao seminars and dharma conferences. During the PV interview, the applicant was unable to provide details of what occurred during the seminars and conferences. Additionally, as discussed, it does not appear that he has been involved in proselytising. I do not consider the testimonies provided to be an accurate reflection of the applicant's religious practice. I consider that they, along with the membership card, have been submitted in order to embellish the applicant's claims. The applicant has not submitted any other evidence which would substantiate his assertion that he attended the JiRu temple and is a Tian Do practitioner. During the Day 1 interview at the VIDF, the applicant stated his religion as Buddhist when he was already initiated into Tian Do. It would be reasonable to expect him to have stated Tian do as his religion.
(emphasis added)
At the hearing there were contrary submissions made by Mr Dobbie and Mr Kay-Hoyle concerning the force and weight of the Delegate’s use of the phrase “…to embellish the applicant’s claims”. In my view, the Delegate was using the word “embellish” in its pejorative sense of indicating that the membership card and the claims in the statutory declarations to the effect that the Applicant had been involved in proselytising, attending Dao seminars and dharma conferences, were fictitious additions to his central claim to be a Yi-Guan-Dao follower: see the definition of the word “embellish” in the Macquarie Dictionary, 6th Ed., and the Oxford English Dictionary, OED Online, March 2019.
Accordingly, before the Applicant attended the Tribunal hearing he knew that the Delegate had completely rejected his claims and had in effect substantially rejected the truthfulness of the statutory declarations. The Applicant gave a copy of the Decision Record of the Delegate to the Tribunal. Further, the s.424A Letter, whilst not specifically referring to the statutory declarations, made crystal clear to the Applicant that his evidence that he had joined the JiRu temple and was involved in its activities and his claims to be a Yi-Guan-Dao practitioner might be found to have been fabricated. It necessarily and logically follows that the s.424A Letter was putting under issue and scrutiny the nature of the evidence given by the makers of the statutory declarations. In such circumstances the Tribunal was not obliged, in order to afford procedural fairness, to indicate to the Applicant what it was thinking or considering about the body of evidence relied on by him or to give an opportunity to him to make submissions on what it was considering. The Tribunal was under no obligation to advise the Applicant that his credibility or the truthfulness of his claims were not necessarily accepted, although it had in fact done so by the s.424A Letter.
The role of the Tribunal was, as relevantly stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268], as follows:
[265] …. The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
To similar effect in SZBEL at 165 – 166 [47] – [48] the High Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
[47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…
[48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
More recently, Wigney J in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53] said as follows:
[53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
In the result, in my view the Tribunal did not commit procedural unfairness as asserted in this Ground, which is not made out and fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 1(C)
The asserted JiRu temple membership card referred to in this Ground is at CB69. On any basis it does not appear to be a notably impressive document. This Ground asserts that the Tribunal breached its procedural fairness obligations in first making the finding at [40] of its Decision Record that in light of its earlier findings “… the Tribunal is drawn to the conclusion that the applicant’s card was fabricated after he was detained in an attempt to assist him to manufacture claims for protection in Australia” without earlier putting to him that it was considering so finding.
In my view this Ground fails for the same reason that Ground 1(B) fails, namely the Applicant knew before the Tribunal hearing that the Delegate had completely rejected his claims, including finding that the membership card was not genuine. It was up to the Applicant to satisfy the Tribunal that the membership card was genuine and of evidential weight in support of his claims, and in the result the Tribunal, likewise with the Delegate, found that it was not genuine but rather had been fabricated. There was no obligation based on procedural fairness that the Tribunal had to give to the Applicant prior notice of its intention to so find and this Ground fails to establish jurisdictional error.
Ground 2(B)
This Ground, as amplified in oral submissions by Mr Dobbie, makes complaint of the Tribunal failing to make a critical enquiry by telephone of Sister Alice and the claimed director of the JiRu temple, Master Nal, in order to corroborate the Applicant’s claims of having been inducted into the Yi-Guan-Dao religion and practising the same.
The role and relevance of Sister Alice has already been set out in this judgment. The claimed relevance of Master Nal comes from the following part of the s.424A Response (verbatim):
3.In term of the existence of JiRu Buddhist Temple. It has been sitting at Belmore for many years and conducted religious rituals and practice for hundreds of Tian Dao cultivators and Dao seekers on weekly basis. The director of the temple is [Master Nal] with the contact landline number which is clearing written in my membership card.
Should the Tribunal wish to verify my Tian Dao Membership, please provide my full name, and the full name of my introducer, [Sister Alice]. The clergies or [Master Nal] will confirm that I am a member of JiRu Buddhist temple
Accordingly, by this part of the s.424A Response the Applicant was holding out the prospect that the Tribunal could verify and confirm that he was a Yi-Guan Dao member of the JiRu temple by either unnamed clergy of the JiRu temple or Master Nal.
Factually, I further note that the Applicant had originally indicated to the Tribunal that he wanted to call evidence from Sister Alice at the Tribunal hearing to attest that he had undergone an initiation ceremony on 2 May 2015: see [6(g)] above, that he attended the JiRu temple on a regular basis before that date and that it was she who had introduced him to Yi-guan-Dao. However, the Tribunal was informed at the commencement of the hearing on 27 September 2016 that Sister Alice was sick and could not be contacted.
At [36] and [38] of its Decision Record the Tribunal referred to the issue of obtaining further evidence from Sister Alice and Master Nal. At [38] it stated as follows:
[38] The Tribunal has considered the applicant's request that it contact [Sister Alice] and [Master Nal]. The Tribunal notes that [Sister Alice], whom the applicant claims is his initiator, has previously provided a statement to the Tribunal, and was nominated as a witness but was unavailable on the day of the hearing. The Tribunal does not accept that it is necessary to seek further information from [Sister Alice]. Nor is the Tribunal satisfied that it is necessary to contact the person the applicant describes as [Master Nal]. The Tribunal accepts that [Master Nal] and [Sister Alice] will be prepared to confirm the applicant's claimed participation in Yi Guan Dao. However, given the lack of any information indicating that the JiRu temple has a formal structure or an association, the Tribunal considers that the weight that can be given to their evidence is questionable. The Tribunal also does not accept that the assertions of persons who have written statutory declarations or the applicant's ability to obtain some photographs of a temple or shrine overcome the Tribunal's findings above. The persons who have written statements have attested to their involvement in Yi Guan Dao and have provided membership cards. Whilst the Tribunal is prepared to accept that they may have some involvement in a JiRu temple, there is no other independent evidence establishing their connection with Yi Guan Dao, apart from their membership cards. In any event, even if these people and [Master Nal] and [Sister Alice] are associated with the temple, the Tribunal has found above that the several other aspects of the applicant's claims are problematic. The Tribunal is not satisfied that any evidence that could be provided by these people could overcome the findings made above regarding various aspects of the applicant's claims.
In my view the Tribunal did not act legally unreasonably, irrationally or arbitrarily in not contacting Master Nal or Sister Alice by telephone, remembering that the test for legal unreasonableness is stringent: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 per Kiefel CJ at 411 [10] – [11], Gageler J at 421 [52] and Edelman J at 438 [135] and 439 [140].
First, it would appear to have been open to the Applicant to have submitted a statement from Master Nal or to ask the Tribunal to conduct a further hearing at which Master Nal and Sister Alice could be called to give evidence, but the Applicant took neither of these courses, notwithstanding he was represented by a registered migration agent. It was for the Applicant to make his case before the Tribunal and the Tribunal to review the Delegate’s decision not to grant to the Applicant the Protection visa. As Bennett J said in SZNVX v Minister for Immigration (2009) 112 ALD 475 at 481 [29]:
[29] Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims (Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant’s case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his “nursemaid” (Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [199]–[200] per Allsop and Graham JJ – appeal allowed by the High Court but not on this point).
Second, whilst s.424(1) of the Act gives the Tribunal a discretionary power to “get any information that it considers relevant”, this section is permissive and facultative, rather than mandatory: Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18] per Sundberg J and VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27] per Crennan J.
The circumstances where a decision-maker has an obligation to make enquiries are within a “strictly limited” compass: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169 – 170.
In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case...
Nevertheless, as Bromwich J said in Westlake v Attorney-General of the Commonwealth [2017] FCA 1058 at [27]:
[27]It has long been the law, at least in the migration area, that there is no duty on an administrative decision-maker to inquire or conduct investigations, except perhaps in very limited circumstances: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15; 259 ALR 429 at [25]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [24]. The circumstances of this case do not meet any of those very limited exceptions, nor otherwise give rise to a duty to make inquiries of the kind suggested on behalf of the applicant.
In my view, the circumstances of this case did not give rise to any duty of the Tribunal to make telephone calls to Sister Alice and Master Nal. The Tribunal already had the statutory declaration of 11 April 2016 made by Sister Alice which had stated that the Applicant was heavily involved in the activities at the JiRu temple and at [38] of its Decision Record the Tribunal recorded that it accepted that if both Sister Alice and Master Nal were contacted by the Tribunal they would be prepared to confirm the Applicant’s claimed participation in the practise of Yi-Guan-Dao. However, as also recorded by the Tribunal at [38], its substantive findings made earlier with respect to the substantive claims of the Applicant meant that the present evidence from Sister Alice and any future evidence from her and Master Nal would not overcome the findings already made concerning the Applicant’s claims. There is nothing unconventional about this process of reasoning. In BLO15 v Minister for Immigration & Border Protection [2017] FCA 1092 at [39] Charlesworth J said as follows:
[39]In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 , Gleeson CJ considered a complaint that a Tribunal had erroneously disbelieved the evidence of a review applicant without taking into account the corroborative evidence of another witness. The Tribunal had, it was submitted, erred by failing to consider the evidence as a whole and erroneously rejecting the corroborating evidence for reasons that had nothing to do with its quality. Gleeson CJ said (at [12]):
I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant’s/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering … It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
The Tribunal did not act legally unreasonably in failing to make contact with Master Nal or Sister Alice, given its earlier emphatic rejection of the Applicant’s claims. The Tribunal’s decision to not contact Master Nal or Sister Alice in the particular circumstances of this case was not one made outside the boundaries of its decisional freedom, and did not give rise to jurisdictional error by constructive failure to exercise jurisdiction.
Further, it is clear that the Tribunal did genuinely have regard to any wish of the Applicant to take further evidence from Sister Alice and Master Nal, but decided not to. In deciding not to, after having given genuine and meaningful consideration to the request, the Tribunal did not commit jurisdictional error: see Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 at [63] per Bennett J. See also the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304 at 316 [37] per Spender, Kenny and Lander JJ.
In my view this Ground is not made out.
Ground 2(C)
This Ground fails in establishing that the Tribunal’s reasoning at [37] of its Decision Record is legally unreasonable, irrational or arbitrary.
It is clear that the Tribunal was concerned about every aspect of the Applicant’s claims in relation to practising Yi-Guan-Dao and at [33] of its Decision Record it recorded its view that his “evidence regarding his attendance at the JiRu temple in Sydney is problematic”. The Tribunal had previously in the s.424A Letter invited the Applicant to comment on information that the headquarters of Yi-Guan-Dao in Australia was in Brunswick, Victoria, and that its website contained no details of the asserted JiRu temple at Belmore, or any other Yi-Guan-Dao temple named JiRu. Nevertheless, at [37] the Tribunal recorded that it was prepared to accept that “there is a temple by the name of JiRu at 5A Hugh Street [Belmore]”.
At the end of [37] of its Decision Record the Tribunal reasoned that, whilst it was prepared to accept that there was a temple of some kind at Belmore, it did not accept that it existed in a formal manner or that it provided for participation in the kind of activities claimed by the Applicant, because there was no evidence that the JiRu temple at Belmore held functions or initiates or participates in any other formal activities as described by the Applicant. Part of the basis of that reasoning, as expressed by the Tribunal at [37], was clearly based on an assumption that a religion, such as Yi-Guan-Dao, would have a wish to proselytise by publicising, at least in some way, information regarding its location and address and publicising the sort of events that the Applicant claimed were carried on there.
In my view this reasoning was not legally unreasonable, irrational, arbitrary or capricious, but rather open to the Tribunal, because most religions do seek to proselytise and the statutory declarations claimed that proselytising was an activity of the Applicant himself.
Further and in any event, the Tribunal’s reasoning in this regard was hardly a critical matter and it rejected the Applicant’s claims on numerous and different bases. Accordingly, even if the Tribunal had given undue weight to the apparent lack of publicity of the JiRu temple in Belmore in its process of reasoning, that would not give rise to jurisdictional error: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.
This Ground is not made out.
Ground 2(D)
In my view this Ground fails because the Tribunal did not act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, and its process of reasoning and findings at [29] of its Decision Record were not legally unreasonable, irrational or arbitrary. In the last sentence of [42] the Tribunal specifically disavowed reaching any conclusion on the basis of the Applicant’s knowledge of Yi-Guan-Dao, or its principles.
The simple fact of the matter is that it was the Applicant’s claim that he had not known that Yi-Guan-Dao was proscribed and regarded as a reactionary organisation in China until he was so advised on the third day of his being in detention at Villawood by Sister Alice (see [21] and [25] of his Statement, [6(h)] above, his interview with the Delegate summarised at CB111 and [11] of the Decision Record of the Tribunal). That claim could perhaps have explained why at the compliance client interview on 2 April 2016 he had made no mention of basing his proposed Protection visa application on his practise of Yi-Guan-Dao, notwithstanding that he had been initiated into the religion on 2 May 2015 and was supposedly regularly attending and being actively involved in Yi-Guan-Dao activities at the JiRu temple.
At [29] of its Decision Record the Tribunal was merely recording its consideration and findings on these claims of the Applicant. The Applicant had claimed that his own parents believed in Guanyin and that he had often seen them worshipping Guanyin since his childhood (see [13] of his Statement, [6(e)] above and [8] of the Decision Record of the Tribunal) and he was 17 years of age when he arrived in Australia. The Tribunal at [29] reasoned that he would not be unaware that Chinese citizens do not have a right to choose or worship their religions of choice, apart from certain recognised religions, and even these have to strictly adhere to Government controls. The Tribunal reasoned that it was unlikely that the Applicant would not have known while in China that Yi-Guan-Dao was proscribed and did not accept in substance that he would only have found out that Yi-Guan-Dao was proscribed after having been detained at Villawood.
There is in my view nothing legally unreasonable or illogical about this form of reasoning and nothing in this Ground establishes that the decision of the Tribunal is affected by jurisdictional error.
Ground 2(E)
This Ground refers to [42] of the Decision Record of the Tribunal. However, at the hearing Mr Dobbie based this Ground solely on [31]. Paragraphs [31] – [32] of the Decision Record appear under the heading “Delay in the lodgement of the application”.
It is well established that it is legitimate to take into account delay in lodging a Protection visa application in assessing the genuineness, or at least the depth, of an applicant’s alleged fear of persecution or of significant harm, and any delay may indicate that there is no real apprehension of danger or harm in the Applicant’s home country.
However, in my view that was not what the Tribunal was considering and making findings upon at [31] and [32] of its Decision Record, notwithstanding the perhaps infelicitous heading under which those paragraphs appear. Rather, the Tribunal was looking at the long period of time that the Applicant had remained in Australia since he stopped his study and worked for a period of five years prior to his detention. It noted that he had made no plans to leave Australia and return to China and came to the view that he would have undoubtedly continued to remain in Australia unlawfully if he had not been detected and detained and only when caught and detained did he then seek to fabricate claims for protection. This finding was also inextricably linked to the rest of the root and branch rejection of the Applicant’s claims. It is again not a critical matter or finding in its own right.
In other words, [31] – [32] of the Decision Record of the Tribunal are not in any way dealing with the period referred to in the Ground between the Applicant’s claimed adoption of Yi-Guan-Dao on 2 May 2015 and his lodging of his Protection visa application on 28 April 2016, but the more general period of his activities since he came to Australia in July 2010.
Further, once the Tribunal had completely rejected the Applicant’s claims to be a follower of Yi-Guan-Dao there was indeed in any event an operative delay in the lodgement of his Protection visa application, to which the Tribunal could legally reasonably have had regard.
This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 5(A)
This Ground tortures [39] of the Decision Record of the Tribunal. At [13] above I have set out the sequence of events at the interview with the Delegate in relation to signage on the JiRu temple. I am of the view that a fair reading of the relevant passages of the Decision Record of the Delegate indicates that he considered that the Applicant, realising the relative weakness of his evidence prior to the natural justice break that the JiRu temple was “a plain three storey building” with “no distinguishing features outside the building that indicates it is a temple”, decided during the natural justice break to improve his evidence by, inconsistently and for the first time at the interview, asserting that it had “four letters in Chinese on its front saying JiRu Buddhist Temple”.
The Delegate conveyed his thoughts politely and it would have been inappropriate and unnecessary to go any further: Smith v NSW Bar Association (1992) 176 CLR 256 at 271 per Deane J.
It was to this sequence of events and circumstances that the Tribunal was referring at [39] of its Decision Record when it referred to the Applicant’s “lack of knowledge of the sign on the building… when asked during the Departmental interview”, as being indicative, combined with other aspects of his evidence, that he did not at any time attend the JiRu temple at Belmore. That is in substance a correct reference to the events at the interview with the Delegate. The Tribunal was entitled at [39] to focus and put emphasis upon the Applicant’s evidence to that effect at the interview with the Delegate prior to the natural justice break, rather than the belated statement after the natural justice break that the JiRu temple did in fact carry a sign.
Further and in any event, once again the issue of the sign on the JiRu temple was not a critically important issue, but only one rather minor aspect of all the reasons that led to the Tribunal rejecting the Applicant’s claims.
This Ground fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application to this Court is to be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 31 May 2019
0
28
2