DZACE v Minister for Immigration

[2012] FMCA 378

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACE v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 378

MIGRATION – Review of decision of IMR – whether IMR decision was infected with apprehended bias – whether IMR failed to give himself the requisite direction to nature and extent of caution required in assessing credit – whether IMR failed to direct himself as to the standard of satisfaction required to make findings of falsity in relation to statements of the applicant.

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs   [2003] FCA 872
Minister for Immigration & Anor v SGLB (2004) 207 ALR 12
MZXFJ v Minister for Immigration & Anor [2006] FMCA 1465
SAAK v Minister for Immigration & Anor [2002] 121 FCR 185
Briginshaw v Briginshaw (1938) 60 CLR 336
Minister for Immigration & Anor v QAAH [2006] 231 CLR 1
Abebe v Commonwealthof Australia (1999) 197 CLR 510
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: DZACE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 66 of 2011

Judgment of: Raphael FM

Hearing date: 26 April 2012

Date of Last Submission: 1 May 2012

Delivered at: Sydney via video link to Darwin

Delivered on: 8 May 2012

REPRESENTATION

Solicitors for the Applicant: Pipers Barristers and Solicitors

Counsel for the Respondent: Mr T Anderson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application be dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 66 of 2011

DZACE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is an ethnic Turk-Iranian who lived in Tehran until 2010 when he came to Christmas Island as an unauthorised boat arrival on 18 August.  He participated in an entry interview on 9 September 2010 and made a request for a refugee status assessment on 29 October 2010.  A negative assessment was made following an interview by an RSA officer on 1 November 2010, and on 10 May 2011 the applicant applied for an independent merits review of that assessment which had been concluded on 20 April 2011. The second respondent carried out the independent merits review.  He interviewed the applicant in the presence of his adviser by way of video-link and with the assistance of an interpreter.  On 9 September 2011 the reviewer recommended that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were the Convention ones of actual or imputed political opinion.  The applicant told how he and a friend, as supporters of the opposition leader Moussavi in the 2009 elections, attended a demonstration at which the application had assaulted a security officer.  Not only had the applicant’s friend disappeared but the applicant himself was arrested and held in detention and tortured.  The applicant was allegedly released from detention as a result of a security officer recognising that he was the son of his father, and being prepared to accept a bribe in return for the applicant’s release into the hands of his brother.  The applicant then went into hiding in the north of Iran for some time before he was able to make arrangements to leave the country on what was either a false passport or a genuine passport with a photograph of a person who looked similar to the applicant.  The applicant claimed that he had destroyed his passport in Bangkok, where he had obtained a Turkish passport which was used to transfer him to Indonesia from whence he embarked for Australia.

3. The reviewer commenced his findings and reasons for dismissing the applicant’s claim at [99] [CB 157]:

   “I have taken into account that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, especially in the context of claimants who have been residing in detention and of interviews somewhat constrained by time and reliant on interpretation, where a claimant may be slow to realise what is relevant and what degree of detail is required. However, this does not mean that inconsistent evidence or the late introduction of significant new claims are unimportant or should not reflect on credibility.”

4. The reviewer then accepted that the applicant was an unmarried Turkish-Iranian living in Tehran who had completed ten years of schooling, before military service, and later worked as a certified pipe-welder.  He accepted that the applicant was laid off in early 2009 due to economic problems affecting his industry:

   “I can easily accept that he voted for Moussavi, as he said, in dissatisfaction with the government’s economic performance.”

   The reviewer was critical of the applicant’s evidence:

   “On his own evidence, Mr A’s account of his attendance at the 20 June 2009 protest is somewhat out of character, although I accept he was fed-up enough with the government to want to vote, or vote again, for the opposition. There are implausible elements, inconsistencies and other deficiencies in his evidence about attending the protest that I will discuss further below. On hearing his evidence overall, I give weight to Mr A’s description of himself as someone who did not attend protests and who did not get involved even in campaigning because he was not political and merely cast his vote. I do not accept that he campaigned for Moussavi, as claimed during our interview, as I do not accept his explanation for omitting this evidence in the past, where for example, he originally said he and M just happened upon the demonstration when they were walking near a named mosque. On hearing his evidence overall, I also give weight to Mr A’s description of himself as someone who was not given to public expressions of political opinion. He said that this was [because] he did not dare to protest, but I find on his evidence that this was because he was not political and was somebody in his own estimation who merely cast his vote.”

   In the subsequent paragraphs the reviewer points out inconsistencies in the applicant’s story and noted that whilst some of the inconsistencies might not have been significant on their own, considered cumulatively they did raise concerns.  In particular, the reviewer was concerned about the applicant’s claim that he never knew where he had been detained:

   “I find that Mr A’s claim about never having known where he was detained, and his disparate explanations as to why he never either managed or cared to find out, highly unconvincing.

   I find Mr A’s story about the captor or torturer who knew Mr A’s father, and all that flowed in evidence from that premise, far-fetched and fanciful. I find that an additional reason not to rely on the story about this officer is that Mr A continued to embellish it, adding new claims about his cousin being in a position to report that the officer had disappeared.

   I do not accept on the evidence before me that Mr A attended any political rallies in Iran before or after the 2009 general elections. It follows that I do not accept that he was arrested either for participating in a demonstration or for assaulting an officer. It follows that I do not accept that he was detained, interrogated or tortured. I do not accept that he was able to escape due to an irregular and now possibly-discovered ruse involving bribery. I also find that were he still in Iran, Mr A would be disinclined to demonstrate publicly or secretly against the government not out of fear of being persecuted but because it [sic] he is not interested: I find that he is not, as he put it, a “political person”.”

5. By an amended application filed on 26 March 2012 the applicant sought review of the decision of the reviewer.

Ground 1

1. Ground 1 is expressed in the following form:

   “The Independent Merits Reviewer failed to accord procedural fairness to the applicant in that a fair minded observer, properly informed as to the nature of the proceedings, might have had a reasonable apprehension what the [sic] did not bring an impartial mind to the question to be decided.”

2. The applicant sought to establish this ground by reference to substantial pieces of the transcript, which I have extracted as an appendix to this decision.  In his written submissions the applicant’s advocate provides more particulars of the allegation of apprehended bias at point 8:

   “8.1.In assessing whether the accounts provided by the applicant were true, the Independent Merits Reviewer in his interview and written reasons for the decision displayed scepticism of such magnitude that a fair minded observer might have had reasonable apprehension that he did not bring an impartial or unprejudiced mind to the task before him

   8.2.The applicant claims the Reviewer embarked on the interview with such scepticism that a fair minded observer may have had a reasonable apprehension that he did not bring an impartial mind to that interview.”

   Correctly, the applicant cites the observations of Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs   [2003] FCA 872 at [25]:

   “The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex part H, at 427. Further, their Honours posited, at 434-5, that:

   Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

   It is this test that I shall apply in considering the applicant’s claims.

3. The first of the series of extracts upon which the applicant relies commences at [T8] and proceeds to [T11].  The applicant submits that the line of questioning displays a level of incredulity on the part of the reviewer far greater than that warranted in the circumstances.  He also argues that the reviewer did not appear to be prepared to accept the applicant’s explanations of what the reviewer seemed to find irreconcilable statements.  For example: the applicant stating that he was not a political person and then stating that he assisted in the Mussavi campaign by working in a shop that distributed pro-Mussavi coloured fabric.  Another example is the response the applicant gave to the question at [T10]:

   “How do you sit that comment next to the one where you said, “I’m not a political person; all I did was vote”?”

   To which the applicant responded:

   “THE INTERPRETER: The reason that I took part in this campaign was that I was not happy with the way Mr Ahmedinejad ruled the country, and he favoured Sepah and Basijis, Hezbollah and all that, and other parts of the family were disadvantaged. So I didn’t want him to be the head of country.

   MR HARDY: You didn’t answer my question, though. Were you listening to the question? I am asking you, how do you sit this activism during the campaign next to the comment that you gave me, where you said, “I’m not a political person. All I did was just vote – all I did was just vote, on the day”?”

   A glance at how the conversation continued at [T10] to [T11] does indicate a certain testiness on the part of the reviewer.  However, I do not think that it displayed a level of incredulity far greater than warranted in the circumstances.  It seems to me that the reviewer was trying to establish the significance of the shop that the applicant was talking about.

4. The second section about which the applicant complains is that between [T12] and [T18].  Here the reviewer starts with a question about when the applicant decided to go to the demonstration.  There is then a series of non-responsive answers until they get back to the issue.  At [T14] the reviewer explains what he is trying to do:

   “MR HARDY: Just quiet, please. Quiet – don’t run ahead of my questions, please. Now, we have a very – we have a very disciplining situation here. We’re talking to each other through an electronic medium. And I’m asking very focused questions at the moment that may not seem so focused at the time you are considering them through this medium, but they’re very focused questions at the moment. And just in the effort of trying to keep you on the subject of the question, sometimes I have to talk over people through this electronic medium, just to bring a pause to the situation and get us back to the point. And that can cause more stress, rather than less. Okay. So I will try not to do too much of that. But, at the same time, if I’m asking you about how long were you there, try to answer that particular question first before moving on to any other detail, so that we know that we have this – we know that we’re understanding each other.”

5. In this section of the transcript the applicant complains that the reviewer was seemingly obsessed with his inability to recall precise arrangements for attending the demonstration, including when the arrangement was made and at what time he arrived “as if it were a football match or theatre the previous week”.  At [T16] it is suggested that the reviewer phrases the applicant’s answers as if they were a series of contradictions whereas, in fact, they were nothing more than vague and imprecise answers, which was understandable given the effluxion of time since the event:

   “MR HARDY: So let me get this right: the day before, your friend said, “There’s going to be a demonstration tomorrow in a particular place. Let’s go,” even though none of you knew when it was going to start? Like, your friends knew where it was going to be but not when it was going to be? And you didn’t dare go, but you went – but we will come to that in a minute. You didn’t know when it was going to start, but you went anyway.”

6. The applicant suggests that there is a parallel here with the expressions used in VFAB at [64] where the Bench referred to a transcript of interview saying:

   “By this point, there can be little doubt that a fair-minded observer, properly apprised of the nature of the proceeding, would apprehend that the Member considered the applicant to be untruthful, and his claims implausible. There appeared to be nothing he could say that could tell in his favour: again, the Member turned whatever the applicant said against him.”

7. I think that a careful comparison of the two transcripts will show that what occurred in VFAB was far more serious than what was occurring here.  And the applicant himself accepts that in order to find the requisite degree of apprehended bias, I have to take these incidents cumulatively because individually they may not amount to more than a reviewer expressing himself sceptically, indicating to an applicant that his story is far-fetched.  The essence of these exchanges is referred to by the reviewer between [50] and [62] in a manner that I do not believe seeks to camouflage the nature of the exchange.

8. The next section of the transcript about which the applicant complains is that commencing at [T23] to [T30], in particular, the exchange concerning the passport at [T25].  This is the discussion between the reviewer and the applicant about why the applicant threw away his Iranian passport in Thailand.  At one point the reviewer states:

   “MR HARDY: Well, if that’s your explanation I will note it. If that is your explanation, I will note it, but there does seem to be an air of unreality here, that you would rather spend your time in Thailand with no entry stamp, no evidence of permission to be there and no passport identity, so – and therefore you throw away this passport.”

   Once again, the reviewer is being criticised for being over sceptical, but I do not believe that is the case.  It seems to me that throwing away a passport is a very serious thing to do, particularly if one does not have a replacement and is found in a foreign country.  I believe that the reviewer had every reason to be sceptical about this part of the story.  In any event, at [T26] it seems that the reviewer is throwing the applicant a lifeline by suggesting a reason for disposing of the passport:

   ““I had this passport. The entry permit had expired. I was scared of being caught. I was scared of being caught with the passport. I was scared the Thai authorities might try to use this passport to send me back to Iran because I had overstayed my time in Thailand.””

   The applicant indicates that this is not what happened, although, to my mind, it is a reasonable explanation.  The reviewer then at [T27] offers a further lifeline by saying:

   ““Is it possible you got the Turkish passport first and threw away the Iranian passport after that – a Turkish passport that gave you permission to enter Indonesia?””

   To which the applicant responded: “No, no.”

9. It does not seem to me that by offering the applicant an opportunity to provide a logical explanation for his activities, the reviewer would be seen by the hypothetical lay-observer to be a person whose mind was closed.  I don’t think that the situation is as the applicant suggests: that this is evidence of the reviewer preferring to have heard a different answer to the one he received and inferentially being dismissive of the applicant’s evidence on that basis.

10. Between [T27] and [T29], there are questions about who arrested the applicant.  This questioning is referred to at [81 CB 154] and again at [105 CB 158] where the reviewer remarks:

    “However, Mr Applicant has given inconsistent evidence about who he confronted. He denied, to me, having ever said that the officers were the police. By the end of our interview, he seemed to have forgotten ever suggesting they were Sepah officers as indicated in his IMR submission and also at the beginning of the same interview. By this stage, he was saying with some certainty that these people who arrived on motorcycles and started dragging protesters into vans were Basiji, when in earlier evidence provided directly to me, he had the Basiji at the demonstration before the motorcycles had arrived and he had attributed other activities to the Basiji on the day. It is reasonable to be unsure then and still unsure to this day to which group the motorcycling officers belonged, but Mr A denies ever suggesting they were the police, when he did suggest that. Overall, I do not accept that he has built genuine subjective impressions over time in the course of remembering actual events affecting him personally and directly.”

11. Whilst I think this reasonably accurately paraphrases the questioning, it is open to a person reading the transcript afresh to conclude that there was some confusion in the responses and as a result, the parties may well have been across purposes.  But that, to my mind, does not indicate apprehended bias.  And to the extent that the reviewer was in error, it would appear to be an error within jurisdiction.

1. At [T29] the reviewer commences questioning the applicant about his detention and how he was released from it, and this questioning continues to [T31].  The applicant argues that by this part of the interview, the reviewer was just not interested in any of the answers that he might have given.  He seems to come to that conclusion from the following exchange at [T29]:

   “THE INTERPRETER: You want me to answer your questions or explain the -  in full detail?

   MR HARDY: No. Just answer my questions. You’ve written statements before. I’m just going to – I’m going to pop in and visit the statement with questions and just – I want to hear answers to the questions. How did you get out?”

2. The applicant complains that there was no questioning about the detention, although the applicant had given previous statements that he was mistreated in it.  But it is surely up to the reviewer to decide what aspects of the applicant’s story he wishes to question.  It may well have been that had he accepted the applicant’s claim that he had been placed in detention, he would have believed that he was mistreated there.  So it was unnecessary to question him about that.

3. The following part of the interview found between [line 36 T29 to line 20 T30] indicates to me a certain testiness on the part of the reviewer. The applicant claims that between [T31] and [T32] there is evidence of the reviewer drawing conclusions of inconsistency which were not justified.  This is illustrated at [T32] where the reviewer says:

   “MR HARDY: I’m putting to you an observation that when I asked you about how odd it was that you didn’t know where you were you said the opportunity didn’t arise to ask your brother. You said there wasn’t time. And now you’re saying you weren’t even interested in finding out. Now, if you weren’t interested in finding out, I’m – it seems odd that you were even discussing the difficulty in finding an opportunity to raise it or the, you know, the absence of an opportunity to discuss it, because there wasn’t even an interest in discussing it.”

4. I can see that the applicant offered a type of explanation for why he made no enquiry about where he had been imprisoned and he said that after he had been released he just went into the back seat of the car and slept until they reached the north of Iran and the next day his brother went back to Tehran.  But by the same token the Reviewer is entitled to be sceptical about why the applicant never asked the brother in the few hours that they were together where he had been detained.

5. The applicant complains that a fair minded lay observer would see that any vagueness on the part of the applicant was being thrown back at him as an inconsistency and that in the context of a person giving evidence through an interpreter and a video link the constant credulity raised by the Reviewer would cause an observer to wonder whether the applicant was being given a fair hearing.  The applicant says of the concerns raised by the Reviewer at the bottom of [T34] going over to [T35] that whilst it may not amount to the constant interruptions referred to in VFAB the scepticism and incredulity and regular references to apparent inconsistencies serve the same purpose.  On the other hand a careful reading of those statements by the Reviewer might indicate to the contrary that the Reviewer is trying to give the applicant every opportunity to provide him with a full explanation:

   “MR HARDY: So what I thought I would do – I’ve asked all the questions that I consider it necessary and appropriate to ask at this stage. I’ve raised with you where I think my areas of interest and concern are. I think it’s now a matter for you and your adviser, and there are one or two ways to proceed from here. One way is to listen to some summing up comments from your adviser and maybe some further comments from you, and then have further submissions; or, if you prefer, give you time to talk with your adviser and then come back with submissions on another day. So shall we take another little break, maybe, and then you can decide maybe the way forward?”

6. An allegation of apprehended bias is a serious matter.  The applicant has put his case as thoroughly as he could.  He accepts that the transcript has to be looked at in whole and that is what I have done.  Whilst there are areas of concern there are also strong indications such as the one referred to above that a properly informed lay observer would understand as indicating that whilst the Reviewer may have begun to form certain views about the credibility of the applicant’s evidence he was still open to persuasion.  I do not believe that the conduct of this Reviewer can be construed within the proper definition of apprehended bias and this ground of application is rejected.

Ground 2

1. The second ground is:

   “The Independent Merits Reviewer made an error of law in that he failed to give himself the requisite direction, in the circumstances of this applicant, as to the nature and extent of caution required in assessing credibility.

   Particulars

   a. The Independent Merits Reviewer did not expressly of [sic] by inference consider the possibility of the effects of effects of [sic] past trauma on the capacity of the applicant to provide a cogent history;

   b. The Independent Merits Reviewer failed to consider expressly or by inference the effluxion of time since the matters in question took place, in assessing the variety of the applicant’s recollections during his interview with the applicant;

   c. The Independent Merits Reviewer failed to consider the inherent difficulties of assessing credibility via video link;

   d. Whereas the Independent Merits Reviewer did claim to have regard to certain difficulties in assessing credit, caused by the applicant being a detainee, the use of an interpreter and time constraints, it is apparent from the record of interview and the reasons for decision that very little, if any, regard was has [sic] to the prejudicial effects on the applicant of those factors;

   e. The Independent Merits Reviewer, having found that some aspects of the applicant’s history were difficult to believe, impermissibly rejected virtually all aspects of the applicant’s history, impermissibly failing to consider the possibility that some or most of the applicant’s history could be true.”

2. In his written submissions the applicant commences by rehearsing the matters upon which the Reviewer found against the applicant upon his credit and then states:

   “18.MIMIA v Yusuf (2001) 180 ALR 1 at 8 [sic: 84], makes it clear that there must be a legal error for a court to declare a decision under review unlawful.

   “If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies in [sic] irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has [made] an error in its understanding of that applicable law or has failed to apply the law correctly on [sic] the facts it found. If that is so, the ground in s476(1)(e) is in [sic] made out.”

   19.In this ground, it is alleged by the applicant that the Reviewer asked himself the wrong question, by misdirecting itself as to the nature and extent of the caution that should be exercised in making adverse findings as to credit.

   20.The only statement of the Reviewer in his Reasons for Decision that constitutes a self direction on issues on credibility reads as follows: (Court Book page 157.7 Para 99 of decision):

   “I have taken into account that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, especially in the context of claimants who have been residing in detention and of interviews somewhat constrained by time and relying on interpretation, where a claimant may be slow to realise what is relevant and what degree of detail is required. However, this does not mean that inconsistent evidence or delayed introduction of significant new claims are unimportant or should not reflect credibility.””

   The applicant submits that there are three additional reasons for the Reviewer exercising caution. He submits that the Reviewer should have taken into account that the interview was taking place by video-link and that there was a considerable fluxion of time between the relevant events and the interview itself.  He should also have considered that the applicant may have suffered trauma.  The applicant submits that the Reviewer did not act on the caution that he did articulate because there was a high level of scepticism from very early on in the interview and a level of impatience demonstrated throughout the record of interview.  In Minister for Immigration & Anor v SGLB (2004) 207 ALR 12[1] the High Court said at [73]:

   “[73]There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear.” [emphasis in original]

   [1] “SGLB”

3. The wisdom of these remarks is without question.  As is an acknowledgment that an express reference to the approach a Reviewer intends to take to the assessment of evidence does not necessarily mean that such an approach is taken; MZXFJ v Minister for Immigration & Anor [2006] FMCA 1465[2] at [34]. I fear, however, that it needs much stronger evidence than that of the current transcript to convince me that this Reviewer did not take into account matters appropriate to findings upon credibility of this particular applicant. It will be seen from extracts that have already appeared in this decision that the Reviewer was conscious of the fact that he was working through a video link and an interpreter. I do not believe that the transcript gives evidence that the interview was being rushed and the applicant most certainly made it clear that part of the reason for his difficulty in remembering things was the time lag between those events and the interview. The submissions of the applicant passed very near those of pure merits review and whilst they are no doubt genuinely made and felt, I do not believe that they can satisfy a court that jurisdictional error can be founded by misdirected caution relating to credibility findings. The only authority cited by the applicant was MZXFJ and through that case certain passages from SAAK v Minister for Immigration & Anor [2002] 121 FCR 185[3].  However, as the respondent points out, McInnis FM in MZXFJ only reproduced the extracts from SAAK because they were relied upon by the Minister, and in SAAK the Court found against the appellant on its assessment of the Tribunal’s approach and found it unnecessary to decide whether the alleged failure provided a ground of review.  MZXFJ was a case that I believe should be restricted to its own facts which related to the failure by the Tribunal to apply its own gender guidelines rather than any misdirection as to the exercise of caution in considering questions of credit or credibility.  Again as the respondent submits, when the applicant relies on the dissenting Judgment of Kirby J in SGLB at [73] he does not include his Honour’s statement that:

   “It is for the tribunal to assess the facts, including questions of credibility and the genuineness of the application made by the respondent.”

   [2] “MZXFJ”

   [3] “SAAK”

4. As regards the concerns about past trauma this would only be relevant if past trauma had been found.  The Reviewer did not consider that the applicant had suffered in the way in which he claimed.  For all these reasons I am unable to find that the Tribunal fell into jurisdictional error in the manner suggested in Ground 2.

Ground 3

1. The third ground is:

   “The Independent Merits Reviewer made an error of law in that he failed to direct himself as to the standard of satisfaction as to the falsity of any statements made by the applicant that ought have been applicable given the gravity of the consequences of making such findings.”

2. This is an argument that the Tribunal should import into its reasoning a requirement to be positively satisfied, in the Briginshaw[4] sense, before effectively finding that the applicant has fabricated his claims.  Again it is a submission that is unsupported by authority.  In Minister for Immigration & Anor v QAAH [2006] 231 CLR 1 the High Court confirmed that there was no onus in proof of matters of this kind. It is not the case that an applicant’s claims should be accepted unless they are disproved. The responsibility lies squarely upon an applicant to satisfy a reviewer; Abebe v Commonwealthof Australia (1999) 197 CLR 510. The credibility of an applicant in this regard is essential but that is a matter within the discretion of the Reviewer and untrammelled by dicta relevant to curial proceedings.

   [4] Briginshaw v Briginshaw (1938) 60 CLR 336.

3. The applicant submits:

   “The contention of the applicant was not that the second respondent misunderstood there was, or was not, an onus – there is not. It was that he was not alive at all to the principle that applies across all civil law in Australia, that “….or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction.”(Briginshaw).

   The consequences of the second respondent being wrong are far more serious in this case, than in matters of career or reputation, where Briginshaw is routinely applied in Australia. Absent the requisite caution being exercised before undermining the credit of the applicant, the second respondent in this case needed to show that he appreciated this principle, for his decision to be lawful.”

   To make such a finding would, in my view, strain this court’s relationship with the authorities such as QAAH, Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; SGLB and SAAK, where whilst there was talk of caution it related to the circumstances of the applicant at the time of the initial interview. It seems to me that the applicant in this case requires the Reviewer to go further. In any event SAAK left the matter undecided [at 42]. I do not believe there is merit in this ground.

4. For the reasons given above the application must be dismissed and the applicant must pay the first respondent’s costs which shall be assessed in the sum of $6,240.00.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  8 May 2012