DSB16 v Minister for Immigration

[2018] FCCA 1761

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1761

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa –whether Tribunal considered applicant’s claims as a whole – whether the Tribunal acted irrationally by relying on the applicant’s having remained unlawfully in Australia as indicating applicant had fabricated his claims for protection – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 48A

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Firs Applicant: DSB16

Second Applicant: DSC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3432 of 2016

Judgment of: Judge Manousaridis

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Sydney

Delivered on: 11 July 2018

REPRESENTATION

Applicants in person assisted by an interpreter

Solicitors for the First Respondent: Ms M Butler of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3432 of 2016

DSB16

First Applicant

DSC16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants are husband and wife respectively, and citizens of the People’s Republic of China. They seek judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).

Background

1. The applicants arrived in Australia on 18 August 2007 on a 457 Business visa. That visa was cancelled on 30 April 2009 and the Migration Review Tribunal affirmed the decision to cancel.

2. On 15 March 2010 the first applicant (applicant) lodged a Protection visa application (First Protection visa application) in which the second applicant was included as a member of the applicant’s family unit.[1] In the First Protection visa application the applicant had made claims for protection based on his involvement with Falun Gong practice in China.[2] That application was rejected by a delegate of the Minister[3] and was affirmed, on review, by the Refugee Review Tribunal (RRT).[4] The applicants unsuccessfully sought judicial review of the decision of the RRT.

   [1] CB1-40

   [2] CB1-40

   [3] CB61-76

   [4] CB81-90

3. On 29 April 2014 the applicant lodged a second Protection visa application (Second Protection visa application) in which the second applicant was included as a member of the applicant’s family unit.[5] That application was accepted as valid because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[6] A delegate of the Minister refused to grant the visa on 19 February 2015,[7] and the Tribunal affirmed the delegate’s decision on 21 November 2016.[8]

   [5] CB93-120

   [6] [2013] FCAFC 71

   [7] CB149-165

   [8] CB192-198

Claims for protection

1. In the Second Protection visa application the applicant made the following claims for protection:[9]

   a)      The applicant left China to avoid “the conflict with the powerful villagers” and the applicant stated that “we have been continuously threatened and harassed”.

   b)      The applicant fears “sustaining harm, intimidation and harassment”, “being unable to claim the right to access the land expropriated by the villagers” and “being unable to put the killer behind the bar”.

   c)      The applicant fears “the neighbours and the authorities” will harm or mistreat him if he goes back.

   d)      The applicant’s family has been “in dispute with the powerful neighbour about the land in the past” and after the applicants arrived in Australia the applicant’s father “continued the dispute over the issues in which the authorities did not want to resolve as the authorities have strong connection to my neighbour”. The dispute worsened and the applicant’s father was killed as a result. The authorities did not charge anyone with the applicant’s father’s death and the “neighbour has achieved on the land expropriation”.

   e)      If the applicant were removed to China he will ask for the land to be returned and will “seek justice” in connection with his father’s death and will therefore be persecuted.

   f)      In the past the authorities have “backed up” the applicant’s neighbour who “expropriated my land and killed my father which have been known to all the villagers”.

   g)      The applicant’s neighbours have never been punished and “[i]t infers that” the applicant “will not be protected by the authorities” if he is returned to China.

   [9] CB191-198

2. Before the delegate the applicant gave some details about how his father was killed. The applicant said that his neighbour had contacts in the government and “that he used the cow to kill his father”.[10] Before the Tribunal the applicant said that the neighbour made a cow attack his father;[11] and he also claimed his mother was beaten by the neighbour when she went to argue with him after the applicant’s father’s death in 2010.[12]

   [10] CB158

   [11] CB197, [19]

   [12] CB196-197, [18]

Tribunal’s decision

1. The Tribunal first considered whether the applicant was entitled to protection on the ground that he practised Falun Gong; and the Tribunal determined that question adversely to the applicant.[13] The Tribunal so determined because although the Tribunal raised with the applicant his having made a claim in the First Protection visa application based on his being a Falun Gong practitioner, the applicant was reluctant to discuss those claims because that claim was “already refused…unfair to me”.[14] The Tribunal found it inappropriate, given the applicant’s “unequivocal reluctance”, to pursue the claimed practice of Falun Gong any further, and it indicated to the applicant that it could draw adverse conclusions.[15]

   [13] CB196, [17]

   [14] CB196, [16]

   [15] CB196. [17]

2. The Tribunal then considered the claims made in the Second Protection visa application. The Tribunal concluded it was not satisfied that the applicant’s family had a land dispute with their neighbour, or that any such dispute is known to villagers, or that the neighbour ever assaulted the applicant’s mother, or that the neighbour had caused or had used a cow to attack his father, or that the applicant’s father died of any such attack, or that the neighbour had encroached on the applicant’s family’s land, or that the neighbour has powerful or strong connections, or that in case of his return to China, the applicant would seek justice in relation to his father’s death, or that he would be harmed or punished for any of the reasons the applicant claimed.[16] The Tribunal relied on a number of matters.

   [16] CB197-198, [21]

3. First, the Tribunal found the applicant’s not having included in the Second Protection visa application the claim that he made in the First Protection visa application, namely, that he was a Falun Gong practitioner, and his unwillingness to pursue before the Tribunal any claim on the basis that he is a Falun Gong practitioner, even though he maintained he was a Falun Gong practitioner, raised serious doubts about the claims he is a Falun Gong practitioner “and the applicant’s overall credibility, as well as the claims he made in the second application for a protection visa”.[17]

   [17] CB196, [17]

4. Second, the applicant did not include in the First Protection visa application the claims he made in his Second Protection visa application (Land Claim). The Tribunal did not accept the applicant’s explanation for not having made the Land Claim in his First Protection visa application, namely, that the applicant’s former representative had advised him that the Land Claim did not fall within the Refugees Convention. [18] While the Tribunal accepted that at times a person may not receive competent legal advice, and that a claim based on a land dispute may not be an obvious claim that could fall within the Refugees Convention, it found it difficult to accept that the Land Claim would not have been made in the First Protection visa application given the applicant had claimed his father died as a result of the land dispute claim.[19] The Tribunal also found it difficult to accept that there would not have been any mention in the applicant’s First Protection visa application of the land dispute which formed the basis of the Land Claim given that he made the application approximately six weeks after the applicant’s father’s death and in circumstances where, according to what the applicant claimed before the Tribunal, the applicant’s mother was attacked by the neighbour.[20]

   [18] CB196, [18]

   [19] CB196, [18]

   [20] CB197, [18]

5. Third, the Tribunal found the applicant’s evidence about the Land Claim to be vague, implausible and incoherent.[21] The Tribunal found as difficult to accept the applicant’s claim that “his neighbour had convinced a cow to attack the applicant’s father”. It also found that the death certificate in relation to the applicant’s father did not corroborate the applicant’s claims of the circumstances surrounding his father’s death.[22] The Tribunal noted it discussed with the applicant his father’s death certificate which referred to the applicant’s father dying from an accident but making no mention of the cow attacking his father; and it noted the applicant’s response, namely, that if one has connections, important evidence would not be provided.[23]

   [21] CB197, [19]

   [22] CB197, [19]

   [23] CB197, [19]

6. Fourth, the Tribunal considered the applicant delayed in applying for a Protection visa. The applicant arrived in Australia in August 2007 as the holder of a 457 visa, but he did not apply for protection until 2010. The Tribunal did not accept the applicant’s explanation that he has a genuine fear of returning to China.[24] The Tribunal was satisfied the applications for Protection visas were lodged as last resorts to remain in Australia rather than for the claimed fear of harm or for any of the claimed circumstances. The Tribunal was satisfied that the delay in lodging the applications and the periods for which the applicants remained in Australia unlawfully indicated fabrication of the claims of protection in the First Protection visa application and in the Second Protection visa application.[25]

   [24] CB197, [20]

   [25] CB197, [20]

7. For these reasons, the Tribunal was not satisfied the applicant had suffered any of the claimed harm or that there is a real risk that the applicant would suffer significant harm on his return to China.[26] The Tribunal, therefore, concluded the applicants did not satisfy the criterion set out in s.36(2)(aa) of the Act.

   [26] CB198, [21]

Grounds of application

1. The applicant’s grounds of application are as follows (errors in original):

   1.The Tribunal actually failed to consider the applicant’s claims in respect of the land expropriation and his father’s death. Namely, the Tribunal was so preoccupied with the conception that the applicant is not a witness of credit simply because of the applicant’s “migration history, delay in lodging the applications, as well as the periods of unlawfulness.”

   2. The Tribunal failed to consider the applicant’s claims as a whole. The applicant has mentioned his father’s death in all interviews and hearings conducted by the delegates or the Tribunals. It is sufficient to convince that the applicant was so concerned of his father’s death which has been relevant to the applicant’s claims. The applicant is not a person of persuasive and articulate. The Tribunal failed to take the applicant’s complaints into accounts as the applicant has never asked the Tribunal not to consider his father death as a persecutory claim.

   3. The Tribunal erred in taking account of irrelevant consideration, namely, the Tribunal failed to provide reasonable connection why “the periods of unlawfulness indicate fabrication of the claims in both the first and second applications for protection visas.”

   4. The Tribunal failed to disclose the information on which the Tribunal relied to draw a conclusion that “it is implausible and far-fetched that the claimed neighbour had convinced a cow to attack the applicant’s father”.

2. The applicants, who are not legally represented, also made submissions at the hearing. I will refer to the submissions they made after I consider each of the grounds made in the application.

Ground 1

1. This ground claims the Tribunal did not consider or properly consider the applicant’s claims, but it instead based its decision solely on the adverse credibility findings the Tribunal made of the applicant on the basis of the applicant’s migration history and delay in applying for protection.

2. It is true the Tribunal relied on the applicant’s migration history, his delay in applying for a Protection visa, and the applicant’s having remained unlawfully in Australia, as indicating the applicant fabricated the claims for protection he made both in the First and Second Protection visa applications. It is not a fair reading of the Tribunal’s reasons, however, to say that the Tribunal relied only on the applicant’s migration history, the applicant’s having remained unlawfully in Australia, and the applicant’s delay in applying for a Protection visa in not accepting the applicant’s claims. I have set out the reasons on which the Tribunal relied for not accepting the applicant’s claims; and those reasons show the Tribunal relied on matters in addition to the applicant’s migration history, the applicant’s having remained unlawfully in Australia, and the applicant’s delay in applying for a Protection visa. These were the applicant’s maintaining before the Tribunal that he was a Falun Gong practitioner but his reluctance to discuss his claimed Falun Gong practice before the Tribunal; the applicant’s not having included the Land Claim in the First Protection visa application; and the Tribunal’s findings that the applicant’s evidence in relation to the Land Claim was vague, implausible, and incoherent.

3. Ground 1, therefore, fails.

Ground 2

1. This ground may be taken to make a number of claims. The most general is that the Tribunal did not consider the applicant’s claims as a whole. I do not accept that. The Tribunal’s reasons for decision show the Tribunal set out the applicant’s claims, it asked the applicant questions about those claims and put to the applicant concerns the Tribunal had with those claims, and the Tribunal considered each of the applicant’s claims, and the responses the applicant made to the concerns the Tribunal raised with him.

2. The second claim ground 2 may be taken to make is based on the claim that the applicant had consistently claimed before both delegates and the two differently constituted Tribunals that his father had died. The claim appears to be that in those circumstances it was not reasonably open to the Tribunal not to accept the applicant’s claims in relation to the Land Claim. I am not satisfied the applicant mentioned the death of his father as the applicant claims. The Tribunal recorded that the applicant said he mentioned the Land Claim in the course of the hearing before the RRT, but the Tribunal noted the RRT did not refer to any such claim. In any event, even if true, that the applicant consistently asserted is father had died does not mean the Tribunal was bound to accept the applicant’s claims concerning the circumstances in which the applicant’s father died. The Tribunal accepted the applicant’s father had died. What the Tribunal did not accept was the way the applicant claimed the applicant’s father died, namely, by a cow whom the neighbour ordered or convinced to kill the applicant’s father.

3. Third, the ground may be taken to claim the Tribunal did not take into account the applicant’s claim that his father was killed, or his “complaints” (by which I assume the ground means claims) in general. That claim cannot succeed. The Tribunal was aware of the applicant’s claims, and it considered them.

4. Ground 2, therefore, also fails.

Ground 3

1. Ground 3 is directed to the following finding:[27]

   For those reasons, the Tribunal is satisfied that the delay in lodging the applications and the periods of unlawfulness indicate fabrication of the claims in both the first and the second applications for protection visas.

   [27] CB197, [20]

2. Before I consider ground 3 it will be necessary to identify the “delay” and the “periods of unlawfulness” to which the Tribunal in this passage may reasonably be taken to have intended to refer. It is clear that by using the plural “applications”, the Tribunal intended to refer to the applicant’s delay in lodging both the First and Second Protection visa applications. The notion of “delay” is clear in relation to the First Protection visa application. That is so because there is nothing in the material before me that could reasonably have suggested to the Tribunal that it was not open to the applicant to have applied for a Protection visa as soon as he arrived in Australia and, for that reason, it was reasonably open to the Tribunal to find, as it did, that the applicant delayed in making the First Protection visa application.

3. The notion of “delay”, however, is not as clear in relation to the Second Protection visa application. That is so because until no earlier than 24 March 2012, when the complementary protection criterion provided for by s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) came into effect,[28] s.48A of the Act barred the applicant from making a further Protection visa application. And it was not until 3 July 2013 that the Full Court of the Federal Court of Australia in SZGIZ held that s.48A of the Act did not prevent persons who had previously applied but failed to obtain a Protection visa from applying for a further Protection visa on the basis of the complementary protection criterion provided for by s.36(2)(aa) of the Act. In these circumstances, it is reasonable to read the Tribunal’s reference to the delay in the applicant’s applying for the Second Protection visa application to be a reference to the applicant’s not making that application until 29 April 2014 in circumstances where, as at 3 July 2013, when the Full Court of the Federal Court of Australia delivered its judgment in SZGIZ, it was open to the applicant to have become aware that persons such as himself who had previously failed in applying for a Protection visa could apply for a Protection visa on the ground that they satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. This interpretation is supported by the fact that the Tribunal referred to SZGIZ.

   [28] As a consequence of the Migration Amendment (Complementary Protection) Act 2011 (Cth)

4. The “periods of unlawfulness” to which the Tribunal intended to refer is that which it identified in the following passage of its reasons:[29]

   The applicant has had a number of bridging visa and on 29 August 2011, his bridging visa ceased and he remained in Australia as an unlawful noncitizen until he lodged the second application for a protection visa on 29 April 2014.

   [29] CB194, [9]

5. It should be apparent that the Tribunal’s reliance on “periods of unlawfulness” could only relate to the Second Protection visa application; and I am satisfied that the Tribunal intended to rely on “periods of unlawfulness” only in relation to the Second Protection visa application. That is so because there is no suggestion in the Tribunal’s reasons that it found or assumed the applicant was an unlawful citizen at any time before 29 August 2011, being the day on which the applicant’s bridging visa ceased.

6. I now turn to ground 3. I take it to claim that the applicant’s having remained unlawfully in Australia could not logically have indicated that the applicant fabricated his claims for protection. Stated another way, I take ground 3 to claim that the Tribunal reasoned irrationally by concluding that the applicant’s having remained unlawfully in Australia was a matter that was capable of indicating that the applicant fabricated his claims for protection; and that it acted irrationally or unreasonably by considering that the applicant’s having remained unlawfully in Australia, together with the applicant’s delay in lodging the applications for protection, indicated fabrication of the claims in both the First and Second Protection visa applications.

1. The Minister, in his written submissions, submits the Tribunal’s reasons do not support the ground. The Minister submits that the Tribunal’s “credibility finding was based on the applicant’s migration history as a whole, including that he arrived on a business visa which was later cancelled, and that there were delays in the lodgement of the protection visa applications”.[30] The Minister further submits that the Tribunal considered the applicant’s migration history along with a number of other factors affecting the applicant’s credibility, these being the matters to which I have already referred. The Minister submits that “[c]onsidered cumulatively, the applicant’s migration history including his periods of unlawfulness were matters logically probative to the issue of the applicant’s credibility”.[31]

   [30] First Respondent’s Written Submissions, [22]

   [31] First Respondent’s Written Submissions, [22]

2. It may be accepted that, as the Minister submits, the Tribunal relied on a number of matters for not accepting the applicant’s claims were credible. The question that ground 3 raises, however, is more specific; and that is whether there is no conceivable logical or reasonable connection between the applicant’s having remained unlawfully in Australia and the applicant fabricating his claims for protection.

3. In my opinion, it is possible to conceive a logical or reasonable connection. Such connection, however, would require the presence of other facts and circumstances. Of importance would be the time by which the applicant became aware that he could make a second application for a Protection visa. If, for example, the applicant became aware of that possibility many months before 29 April 2014 when he made the Second Protection visa application, yet the applicant remained in Australia as an unlawful noncitizen, that circumstance could rationally or reasonably ground the inference that the applicant elected to remain an unlawful citizen rather than avail himself of the right to make a second application for a Protection visa, and thus regularise his presence in Australia; and he so elected because he did not believe he had valid claims for protection. That, in turn, could rationally or reasonably lead to the conclusion that the applicant’s remaining unlawfully in Australia indicated that the applicant’s claims for protection were fabricated.

4. The material before me does not permit me to make any finding about whether the Tribunal specifically asked the applicant, or was told by the applicant, when he first became aware of his right to make a second application for a Protection visa, or why he made the Second Protection visa application at the time he did. The only evidence before me is what the Tribunal said it discussed with the applicant; and the Tribunal’s description is general; it only refers to the Tribunal having “discussed with the applicant his migration history, including the periods of unlawfulness and the apparent delay in lodging both applications for protection visas”, and that the Tribunal “suggested in the course of the hearing, that the migration history, delay in lodging the applications, as well as the periods of unlawfulness raise serious doubts about the protection claims and claimed fear of harm”.[32] The onus, however, is on the applicant to prove the Tribunal acted unreasonably or irrationally; and in the absence of evidence of precisely what, if anything, the applicant said to the Tribunal about when he became aware of the possibility of making a second application for a Protection visa, I am not prepared to find that by relying on the applicant’s having remained unlawfully in Australia the Tribunal acted irrationally.

   [32] CB197, [20]

5. What if, however, the correct analysis is that the Tribunal did act unreasonably or irrationally by finding that the applicant’s having remained unlawfully in Australia (together with the applicant’s delays in making both Protection visa applications) indicated the applicant fabricated his claims for protection (Finding in Question)? Does that mean the Tribunal’s decision is infected by jurisdictional error? To answer these questions it is necessary to analyse what the Tribunal decided.[33]

   [33] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [77] (Robertson J)

6. Considered alone, the Finding in Question could be interpreted as wholly dispositive of the applicant’s claims; it could be read as a finding that the applicant fabricated his claims for protection. In my opinion, however, the Finding in Question cannot reasonably be so read. As I have already concluded, the Tribunal relied on matters in addition to the applicant’s migration history, his having remaining unlawfully in Australia, and the delay in applying for a Protection visa. These were the applicant’s maintaining he was a Falun Gong practitioner but being reluctant to discuss his claimed Falun Gong practice; the applicant’s not having included the Land Claim in the First Protection visa application; and the Tribunal’s findings that the applicant’s evidence in relation to the Land Claim to be vague, implausible and incoherent.

7. In my opinion, the Finding in Question is no more than a finding that, in addition to the matters the Tribunal had already concluded raised questions about the credibility of the applicant’s claims, the applicant’s delay in applying for protection and the periods of unlawfulness are matters that indicate the applicant’s claims are fabricated. In those circumstances, when concluding it was not satisfied the applicant had established the Land Claim and all the evidence the applicant gave in support of those claims, the Tribunal did not in terms rely on any finding it had already made that the applicant had fabricated his claims; it relied on the matters it set out in its reasons, namely, the applicant’s claiming he was Falun Gong practitioner but being reluctant to discuss his claimed Falun Gong practice; the applicant’s not having included the Land Claim in the First Protection visa application; the Tribunal’s findings that the applicant’s evidence in relation to the land dispute being vague, implausible, and incoherent; and the applicant’s delay in lodging both Protection visa applications and his having remained unlawfully in Australia. That this is what the Tribunal did can be seen by the words by which it prefaced its ultimate findings. The Tribunal said “for those reasons” which can only reasonably be taken to refer to the reasons it had given earlier in its reasons for decision.

8. Assuming this analysis is correct, there is the question of what consequences, if any, follow from any irrational or unreasonable reliance by the Tribunal on the applicant’s having remained unlawfully in Australia. In my opinion the answer to that question is to be determined by assessing the importance of the Tribunal’s reliance on the applicant’s having remained unlawfully in Australia to the exercise of the Tribunal’s function.[34] In making that assessment it is important to bear in mind that the finding related to the credibility of the applicant, and it is inherent in credibility findings that they may be based on relatively minor matters and yet have a devastating impact on the assessment of the credibility of an applicant’s overall claim. Bearing that in mind, I am satisfied the Tribunal’s reliance on the applicant’s having remained unlawfully in Australia was not important to the exercise of the Tribunal’s function. It was but one of a number of matters on which the Tribunal relied for not accepting the applicant’s claims to be credible. That is demonstrated by the order in which, and the detail with which, the Tribunal dealt with the applicant’s having remained unlawfully in Australia. The applicant’s having remained unlawfully in Australia was considered by the Tribunal to be but a minor matter among the matters on which the Tribunal relied for not accepting the credibility of the applicant’s claims.

   [34] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] (Robertson J)

9. For these reasons, ground 3 fails.

Ground 4

1. This ground assumes the Tribunal relied, or was required to rely, on evidence before it could find that “it is implausible and far-fetched that the claimed neighbour had convinced a cow to attack the applicant’s father”. There is nothing to suggest the Tribunal relied on any evidence to make such finding. And there is no basis for claiming that the Tribunal was required to rely on evidence or give any reasoning for making any such finding. The notion of a person being able to convince a cow to attack another person is so outside the ordinary experience of the human world and the animal world that it was reasonably open to the Tribunal not to accept such notion in the absence of anything more than the applicant’s say so.

2. Ground 4, therefore, also fails.

Submissions at judicial review hearing

1. At the hearing the applicant made a number of submissions. The first is that he believes the Tribunal had already made up its mind before the hearing. I understood the submission to be based on the Tribunal’s communicating to the applicant during the hearing concerns it had in relation to the applicant’s migration history, including his having remained unlawfully in Australia. I do not accept that submission. The Tribunal’s reasons show the Tribunal identified the applicant’s claim, asked the applicant questions about those claims, raised concerns the Tribunal had with those claims, and considered those claims.

2. Second, the applicant said the Tribunal refused to believe the applicant’s father was killed by a cow, but it did not explain why that was not possible. The Tribunal did explain to the applicant why it did not accept the applicant’s father was killed by a cow. First, the Tribunal said “it is implausible and far-fetched that the claimed neighbour had convinced a cow to attack the applicant’s father”. For reasons I have already given, it was reasonably open to the Tribunal to so find. Second, the Tribunal explained to the applicant that, although the death certificate in relation to the applicant’s father showed the applicant’s father died from an accident, the death certificate did not refer to the applicant’s father having been killed by a cow.

3. Third, I understood the applicant to submit it was not open to the Tribunal to rely on the applicant’s migration history in not accepting the applicant’s claims. After I asked the applicant a number of questions to better understand the submission he was attempting to make, the applicant said he did not say the Tribunal could not rely on that history; he submitted the Tribunal failed to consider the applicant’s real fear. I do not accept that submission. The Tribunal did consider the applicant’s claims.

4. The second applicant also made a submission. She said that what the applicant told me was truthful, and asked what was the point of her saying these things if the applicant were not to be believed. This submission raises no jurisdictional error. Whether or not the applicant was credible was a matter for the Tribunal, not for the Court, to assess.

Conclusion and disposition

1. The applicants have failed to establish any of the grounds of application stated in the application, and have otherwise failed to establish that the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

2. At the conclusion of the hearing when I indicated I would be reserving my decision, and that I proposed to give judgment on 11 July 2018 the applicant asked whether he and the second applicant were required to attend. I said they were not required to attend, but I said that it is on the occasion I give judgment that I ask the parties to make submissions about costs. The applicants indicated they preferred not to attend Court.

3. I then explained to the applicants that the usual rule that is applied is that a party who loses must pay the other side’s costs. The applicant said he had nothing to say against the usual order being applied. Ms Butler, who appeared for the Minister, said that if the Minister were to succeed, he would be seeking an order for costs and an order that those costs be set in the amount of $5,000.

4. There is no reason why I should not apply the usual order as to costs. I propose, therefore to order that the applicants pay the first respondent’s costs. I am satisfied that it is appropriate that I set those costs in the amount of $5,000 and propose, therefore, to order that the Minister’s costs be set in that amount.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 11 July 2018