Duu19 v Minister for Immigration
[2020] FCCA 1130
•11 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUU19 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1130 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant not believed – whether the Tribunal breached s.424AA of the Migration Act 1958 (Cth) or failed to properly apply the complementary protection criterion considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5AAA, 36, 424A, 424AA, 425 |
| Cases cited: Abebe v Commonwealthof Australia (1999) 197 CLR 510 CQG15 v Minister for Immigration [2016] FCAFC 146 DAO16 v Minister for Immigration [2018] FCAFC 2 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration v NAMW (2004) 140 FCR 572 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI & Anor (2009) 259 ALR 429 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 Nagalingam v Minister for Immigration (1992) 38 FCR 191 Prasad v Minister for Immigration (1985) 6 FCR 155 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBEL v Minister for Immigration (2006) 228 CLR 153 SZBYR v Minister for Immigration (2007) 235 ALR 609 VJAF v Minister for Immigration [2005] FCAFC 178 WAJW v Minister for Immigration [2004] FCAFC 330 |
| First Applicant: | DUU19 |
| Second Applicant | DUV19 |
| Third Applicant: | DUW19 |
| Fourth Applicant: | DUX19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2572 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2020 |
REPRESENTATION
| The First Applicant appeared in person by telephone |
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2572 of 2019
| DUU19 |
First Applicant
| DUV19 |
Second Applicant
| DUW19 |
Third Applicant
| DUX19 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 September 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants, who are the husband, his wife and their two daughters. The relevant protection claims were made by the first applicant, the applicant husband. In these reasons, I will refer to him as the applicant.
Background facts relating to the applicants’ claims for protection and the Tribunal decision on them are set out in the Minister’s submissions filed on 4 May 2020.
On 20 April 2015, the applicants arrived in Australia on visitor visas.[1]
[1] Court Book (CB) 251
On 15 May 2015, the applicants lodged a combined application for protection visas.[2] The second, third and fourth applicants did not make independent claims for protection and applied as dependent members of the applicant’s family unit.[3]
[2] CB 1-110
[3] CB 36-110, 251
The applicant set out his written claims for protection in a written statement accompanying his protection visa application form.[4] He claimed that he advocated for scheduled castes, specifically the lower Harijan caste, and educated them about their rights in his ancestral village. The applicant discovered that a group of scheduled caste people were living as slaves in his community and he assisted in liberating them from slavery. He claimed that he became their leader and guide, and engaged in preaching for change and development in the scheduled caste community. The applicant claimed his village was in Tamil Nadu, and that his advocacy led to the higher caste threatening him and political parties trying to stop him from helping the lower castes.[5]
[4] CB 152-155
[5] CB 152-154
The applicant also claimed that representatives from political parties attacked him at his home in Chennai and also attacked his friends and that the police had “taken him” many times for investigations and had tortured and beaten him.[6]
[6] CB 152-153
The applicant further claimed that higher caste individuals and political parties hired paid killers to murder him. One night when he was returning home, a group of six people attacked him with huge knives and tried to torch him using petrol. The applicant tried to approach the police but they would not help him. The applicant also tried relocating but was found because the political parties were influential throughout all of India.[7]
[7] CB 154
On 22 June 2016, the applicant attended an interview before the delegate. The delegate provided a summary of what occurred at the interview.[8] In particular, the delegate put to the applicant at the interview five adverse matters that the delegate considered would be the reason, or part of the reason, for refusing to grant the applicant a protection visa.[9] The applicant responded in writing by email on 29 June 2016,[10] and provided country information on discrimination of lower castes, which the delegate expressly considered.[11]
[8] CB 253-256
[9] CB 255-256
[10] CB 239-244
[11] CB 256-257
On 5 August 2016, the delegate made a decision to refuse to grant the applicants protection visas.[12] The delegate found the applicant’s evidence about his ancestral village was contradictory and inconsistent,[13] and found no evidence of the particular village anywhere in Tamil Nadu.[14] In addition, the delegate found the applicant’s explanation that there were no landmarks in the town that would show on Google Maps was contradictory to the evidence he gave in his written statement where he had stated that he had visited his ancestral village to worship twice a year at a family temple.[15] The delegate was not satisfied that the applicant had ever been involved in advocacy work with members of the scheduled castes or for any reason in the village area, Chennai or anywhere else in India.[16]
[12] CB 245-269
[13] CB 260
[14] CB 256
[15] CB 260
[16] CB 260-261
The delegate was also not satisfied that the applicant: had any enemies in India; was opposed by any political parties because of his advocacy work; or was seen as a leader or guide by members of the scheduled castes. The delegate was not satisfied that any part of the applicant’s claims regarding his advocacy work or its consequences were true.[17]
[17] CB 260
The Tribunal’s proceedings
On 27 August 2016, the applicants lodged an application with the Tribunal to review the delegate’s decision.[18]
[18] CB 271-274
On 6 September 2016, the applicant sent an email to the Tribunal outlining some complaints about the delegate’s conduct of the interview.[19] The applicant’s email attached copies of the delegate’s refusal notification and decision record[20] and copies of maps from Google Maps.[21]
[19] CB 277-279
[20] CB 280-292
[21] CB 293-294
On 5 October 2018, the Tribunal wrote to the applicants confirming their matter was being prepared for a hearing and inviting any additional evidence to be provided.[22]
[22] CB 295-296
On 29 July 2019, the applicants were sent an invitation to attend a hearing before the Tribunal on 6 September 2019,[23] which the applicant accepted confirming he would attend the scheduled hearing.[24]
[23] CB 297-299
[24] CB 300-303
On 6 September 2016, only the applicant attended the scheduled Tribunal hearing.[25] At the hearing, the applicant provided a document confirming that the third and fourth applicants attended school[26] and copies of pages from the applicant’s passport.[27]
[25] CB 306-309
[26] CB 310
[27] CB 311-320
The Tribunal outlined in its decision record what occurred at the hearing and the oral evidence provided by the applicant.[28] The applicant elaborated on his claims of being targeted for his advocacy work for scheduled castes[29] and also raised a new claim that the main reason he left India was because he found out that people he feared had attempted to bring a false police case against him.[30] The Tribunal also recorded in its decision record multiple instances where it put to the applicant at the hearing identified inconsistencies and concerns with the applicant’s evidence.[31]
[28] CB 325-331, [9]-[46]
[29] CB 325-327
[30] CB 336, [77]
[31] see, for example CB 331-336, [47], [50], [52], [56], [59]-[61], [63], [65]-[67], [69]-[73], [75]-[76], [78]
The Tribunal’s decision
In a decision dated 17 September 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas.[32]
[32] CB 321-337
The Tribunal identified and relied upon the following inconsistencies and deficiencies in the applicant’s evidence to conclude that he was not a witness of truth and his account of events forming the basis of his protection claims was false:
a)the Tribunal asked the applicant, whether his written statement where he claimed the police took him “many times” for investigation and tortured him “by beating” was correct. The applicant stated that he had been taken by the police to the station many times, but only received verbal abuse. The Tribunal found this inconsistent with his earlier evidence to the Tribunal that there were only two occasions where he was taken by the police and on these two occasions he was beaten and tortured;[33]
b)the Tribunal identified inconsistencies in the applicant’s evidence about his travel abroad in 2014 and found he had not provided a satisfactory explanation for the deficiencies. The Tribunal noted that in his protection visa application, the applicant had stated that he only travelled outside India once in May 2009 and two separate trips in 2011, but before the Tribunal he claimed he only travelled once outside India in 2014, as he was scared he would be killed if his stayed in India.[34] At the hearing, the applicant retracted the claims in his written statement and instead claimed he did travel in 2009 and 2011 for tourism purposes.[35] The Tribunal found there was no evidence that the applicant had ever travelled overseas in 2014, and this inconsistency reflected poorly on the applicant’s credibility.[36] The Tribunal found the inconsistencies in the applicant’s evidence on these matters and his belated adoption of the claims in his written statement only after being reminded of them by the Tribunal further reflected his untruthfulness;[37]
c)the Tribunal noted that in his protection visa application form the applicant stated that he moved to a different address in Chennai in 2006. When the Tribunal asked why the applicant moved, he stated that some small incident happened in 2006 which he could not recall. The Tribunal asked the applicant if the incident he was referring to the incident, in late 2005, where after assisting a couple from different castes to marry, people from the upper caste approached him. The applicant stated that after he helped that couple to marry, some incidents occurred but he could not remember what they were. The applicant further stated that that incident could have been why he changed address at that time.[38] The Tribunal found this was inconsistent with his statement that he moved as the people he feared found out where he was living and started “troubling [him] in these places too”;[39]
d)the Tribunal noted that the applicant’s evidence to the Tribunal was that he changed address in 2010 due to no particular reason. The applicant then changed his evidence and stated that he moved due to problems he was having. The applicant also gave evidence that he did not remember whether the people he feared ever went to the address where he moved in 2010. The Tribunal found this was inconsistent with written statement where he stated that he had moved because the people he feared found out where he was living;[40]
e)the Tribunal found a further inconsistency with the applicant’s written statement in which he claimed people from political parties had attacked him at his home. The Tribunal noted that the applicant had failed to mention this incident when questioned earlier as to what harm he encountered in India, including from members or supporters of political parties.[41] The Tribunal put this inconsistency to the applicant who stated that it was just an argument, not a serious incident. The Tribunal rejected the applicant’s explanation, as in his written statement he clearly stated that the people attacked him;[42]
f)the Tribunal also identified inconsistencies in the applicant’s claims about when he undertook community work. The Tribunal noted that in his written statement the applicant claimed he continued community work despite being harassed and up until a point close to when he left India to come to Australia.[43] The Tribunal found this inconsistent with the applicant’s evidence to the Tribunal that from 2012, he stopped doing the community work altogether because of the harm he had encountered to that point;[44]
g)the Tribunal found the applicant gave inconsistent evidence about a police case against him. Towards the conclusion of the hearing, the applicant gave evidence that people he feared tried to put a false police case against him and that he learned about this attempt approximately six months before he left India. The applicant further stated this was one of the reasons why he made arrangements to come to Australia.[45] The Tribunal noted that this was inconsistent with the evidence that the applicant gave earlier in the hearing, when he stated that no court cases had been started against him.[46]
[33] CB 334, [63]-[64]
[34] CB 331, [47]
[35] CB 331-332, [51]
[36] CB 332, [52]-[54]
[37] CB 332-333
[38] CB 335, [69]
[39] CB 335 [72]
[40] CB 335 [72]
[41] CB 335, [73]
[42] CB 335, [74]
[43] CB 336, [75]
[44] CB 336, [76]
[45] CB 336, [77]
[46] CB 336, [78]
Considering these concerns cumulatively, the Tribunal found the applicant was not a witness of truth and that his account of events on which his protection claims were based was false.[47]
[47] CB 336-337, [79]
The Tribunal found there was no credible evidence that the applicant or any member of his family suffered harm in India or that anyone had sought to harm them. The Tribunal accordingly found that the applicants would not suffer serious or significant harm if they were to return to India.[48]
[48] CB 337, [81]
The present proceedings
These proceedings began with a show cause application field on 4 October 2019. The applicants continue to rely upon that application. There are two grounds in it:
1. The Tribunal erred in law by failing to provide, adequate time to respond and clear particulars of the matters which constitute the reason for affirming the decision under review as contemplated under Sec 424AA of the migration Act. This lack of procedural fairness resulted in miscarriage of justice.
Particulars
The applicant was self represented at the time of hearing and was undergoing severe stress during the course of hearing. The Tribunal during the course of hearing raised some matters of concern without providing clear particulars as to why it may constitute the reason for the affirmation of the decision under review pursuant to Sec 424AA . Further, the Tribunal failed to provide the information that the applicant can seek addition time to respond as required under Sec 424AA(b)(iii) of the Migration Act. The opportunity to respond on a later date would have enabled the client to regain his composure, think calmly and respond to the matters raised. This failure of the Tribunal to provide the information that the applicant can seek additional time resulted in miscarriage of justice
The act of the Tribunal in not providing the information required statutorily, to a self represented, non English speaking applicant (not assisted by the interpreter) vitiates the principles of procedural fairness as enunciated and laid down by High Court in the case of Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (24 May 2012). This act of Tribunal in refusing to give a written record of the reasons vitiated procedural fairness and resulted in miscarriage of justice.
2) The Tribunal failed to apply its mind in relation to matter relating to [complementary] protection as required under Sec 36(2)(aa) of the Migration Act.
The Tribunal failed to ask any questions as to what would happen upon his return to his country .The applicant has pleaded in his application "significant harm" and has adduced evidence that upon his return to his home country he will subject to significant harm by certain politically influential higher caste people. This was not challenged or questioned by the Tribunal but it summarily dismisses the claim under complimentary protection criteria with the observation in para 81 "The Tribunal finds that the applicants do not hold well founded fear of persecution within the meaning of s5J(l) of the Act. For the same reasons, the Tribunal finds that the applicants do not meet the complementary protection criterion"
The application is supported by a short affidavit by the applicant filed with it, which I received as a submission.
I have before me as evidence the court book filed on 6 December 2019. The applicant attended today’s show cause hearing today by telephone. He was assisted by a Tamil interpreter present in court. I invited oral submissions from the applicant. His principal concern was that he was not given the opportunity to respond after the Tribunal hearing and in writing about the Tribunal’s concerns concerning his claims.
As I put to the applicant, that submission depends on ss.424A or 424AA of the Migration Act 1958 (Cth) (Migration Act) having some application to the matters raised by the Tribunal at the hearing. The matters raised at the Tribunal hearing with the applicant were credibility concerns arising out of his written claims and oral evidence.
Those credibility concerns were not matters enlivening the operation of s.424A. Even if I had been wrong in that assessment, there is no evidence before me that the applicant sought an opportunity to respond after the Tribunal hearing about its credibility concerns.
The applicant also asserted that he was stressed at the Tribunal hearing. While there is no evidence of that, I am willing to accept that the applicant, like any person before the Tribunal, may have been anxious. Nevertheless, the record of the hearing contained in the Tribunal’s decision satisfies me that the hearing opportunity afforded him was a fair one.
Neither is any error concerning the application of complementary protection criterion by the Tribunal indicative of any error. The Tribunal’s wholesale rejection of the applicant’s factual claims served to support its conclusions on the complementary protection criterion as well as the refugee criterion.
I otherwise agree with the Minister’s submissions concerning the grounds of other review advanced.
Ground 1 alleges the Tribunal did not comply with s.424AA in putting information to the applicant during the Tribunal hearing and this lack of procedural fairness resulted in a miscarriage of justice.
The first paragraph of particulars contends that the applicant was self‑represented and was “undergoing severe stress during the course of the hearing”. They also state that “some matters of concern” were raised by the Tribunal during the hearing “without providing clear particulars” and without telling the applicant that he could seek additional time as required by s.424AA(b)(iii) of the Migration Act. These complaints are misconceived.
The applicants do not even identify the information that they allege was required to be put to the applicant at the hearing pursuant to s.424AA, and none is apparent. The Tribunal did not employ the procedure under s.424AA because there was no information before it that enlivened its obligations under s.424A(1). The Tribunal put to the applicant at the hearing identified inconsistencies in his evidence, but information for the purposes of s.424A(1) does not include the existence of doubts, inconsistencies or the absence of evidence. Nor does it “encompass the Tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.[49] Additionally, country information falls within the exception outlined in s.424A(3)(a) and is not required to be disclosed under s.424A(1) of the Migration Act.[50]
[49] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
[50] Minister for Immigration v NAMW (2004) 140 FCR 572 at [66]-[71] and [138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [44]-[46], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] and VJAF v Minister for Immigration [2005] FCAFC 178 at [11]-[16]
The second paragraph of the particulars to ground one states that the Tribunal’s failure to provide information to a self-represented, non-speaking English applicant not assisted by an interpreter vitiated the principles of procedural fairness established by the High Court in Minister for Immigration v Li.[51] Such complaints face numerous difficulties.
[51] The applicants include the Full Federal Court citation but this is presumably intended to be the High Court citation: Minister for Immigration v Li (2013) 297 ALR 225
First, the factual assertions intrinsic to this complaint are entirely baseless because the applicant confirmed he had prepared his protection visa application without assistance[52] and that he could speak, read and write English and Tamil.[53] Further, the Tribunal hearing was conducted with the assistance of a Tamil (Indian) speaking interpreter.[54]
[52] CB 8, Q6
[53] CB 14, Q30
[54] CB 306; CB 324, [1]
Secondly, the requirement imposed on the Tribunal to put information to the applicant was confined to the extent of its statutory obligations in s.424A and s.425. As noted above, the Tribunal’s obligations under s.424A were not enlivened by any information before the Tribunal. Further, the Tribunal clearly complied with its obligations under s.425 of the Migration Act by expressly putting to the applicant at the hearing the concerns that it had with his credibility and the veracity of his evidence and affording him the opportunity to give evidence and present arguments on those issues (for example, at [19(a)-(g)]). By ensuring the applicant was on notice at the hearing of the dispositive issues on the review, the Tribunal plainly complied with its s.425 obligations.[55]
[55] SZBEL v Minister for Immigration (2006) 228 CLR 153
Finally, the reference to Li is misconceived as that case was concerned with whether a statutorily conferred discretionary power was exercised reasonably.[56] As noted above, the Tribunal’s statutory obligation to put information to an applicant is confined to the requirements of s.424A and s.425, which the present Tribunal complied with. To the extent this ground alleges there was Li legal unreasonableness, this is a broad assertion which is meaningless in the absence of further particularisation. The test for unreasonableness is “stringent” and only arises in rare cases.[57] Further, unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker.[58]
[56] Li op. cit., at [63]
[57] Li, op. cit.,at [113]
[58] Li, op.cit., at [30]
Finally, Ground 1 alleges that procedural fairness was vitiated and there was a miscarriage of justice by the “act of Tribunal (sic) in refusing to give a written record of the reasons”. This precise nature of this complaint is unclear. The Tribunal gave comprehensive reasons for its decision[59] and notified the applicant of its decision by a letter dated 18 September 2019[60] and sent by email on the same date.[61] If the applicants seek to contend that the Tribunal was required to give them advance notice of its proposed findings or a draft of its reasons before it could finalise its decision, no such obligation is imposed by s.424A or s.425.
[59] CB 323-337
[60] CB 322
[61] CB 321
As noted above, information for the purpose of s.424A does not “encompass the Tribunal's subjective appraisals, thought processes or determinations… or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.[62] Further, procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. To adopt such a course could convey prejudgment.[63] Nor was the Tribunal required to identify the significance of the questions that it put to the applicant or the issue to which those questions go as that approach would import s.424A(1) requirements into s.425.[64]
[62] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
[63] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [48]
[64] Minister for Immigration v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]; SZJHL v Minister for Immigration [2007] FCA 1713 at [16]
The various complaints in Ground 1 are baseless and cannot succeed.
Ground 2
Ground 2 alleges the Tribunal failed to turn its mind to complementary protection in s.36(2)(aa), and “failed to ask any questions as to what would happen upon his return to his country”. The applicant also contends that although he had claimed and adduced evidence that he would face significant harm “by certain politically influential higher caste people”, this “was not challenged or questioned by the Tribunal” and it instead summarily dismissed the claim at [81]. The complaints in Ground 2 misconceive the proper role of the Tribunal and mischaracterise the Tribunal’s actual findings and reasons.
First, the Tribunal was expressly mindful that the applicants could satisfy the criteria for the grant of protection visas if they met the alternative criterion in s.36(2)(aa) of the Migration Act,[65] but as the Tribunal had comprehensively rejected the applicant’s factual claims for protection in their entirety, it followed that the applicants were unable to meet the complementary protection criterion.[66] In other words, there was nothing left for the Tribunal to consider against the complementary protection criterion. As outlined above, the Tribunal[67] gave cogent reasons for concluding[68] that the applicant was not a witness of truth and his account of events supporting his protection claims were false. Given the fundamental rejection of the applicant’s factual claims, it was unsurprising that it held the applicants did not satisfy the complementary protection criterion.[69] It was open to the Tribunal to rely on its anterior factual findings under the refugee criterion to find that the applicants also did not face a real risk of significant harm.[70]
[65] see CB 324-325, [2], [6]
[66] CB 337, [81]-[82]
[67] at CB 331-336, [47]-[78]
[68] at CB 336-337, [79]
[69] at CB 337, [81]-[82]
[70] CQG15 v Minister for Immigration [2016] FCAFC 146; DAO16 v Minister for Immigration [2018] FCAFC 2
Secondly, it was for the applicant to make out his case before the Tribunal. If the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine then it has no duty to make further inquiries or obtain information beyond what is provided to it by the applicant.[71] The Migration Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims.[72] Nor does the absence of findings as to the facts, either favourable or unfavourable to an applicant, render the Tribunal unable to reach the requisite state of satisfaction or non-satisfaction.[73] The Tribunal is not in the position of a contradictor in proceedings before it. It was for the applicant to advance whatever evidence or argument they wished to advance in support of their contention to be entitled to a protection visa. The Tribunal was then required to decide whether the claim was made out.[74]
[71] Minister for Immigration v SZIAI & Anor (2009) 259 ALR 429; Minister for Immigration v SGLB (2004) 207 ALR 12 at [17], [19], [43] and [124]
[72] Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [16]
[73] VSAF of 2003 op. cit., at [19]
[74] Abebe v Commonwealthof Australia (1999) 197 CLR 510 at 576 at [187]
Thirdly, the Tribunal does not have any responsibility of obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[75] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[76]
[75] Section 5AAA of the Migration Act
[76] Minister for Immigration v Guo (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration (1992) 38 FCR 191; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale against the first and second applicants. The applicant claims impecuniosity but, as has been previously stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 May 2020
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