FBD19 v Minister for Immigration & Anor
[2020] FCCA 2028
•23 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FBD19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2028 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZNPG (2010) 115 ALD 303 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZYXS v Minister for Immigration [2013] FCA 614 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SCAA v Minister for Immigration [2002] FCA 668 WAIJ v Minister for Immigration (2004) 80 ALD 568 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | FBD19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3326 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr E. Taylor of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
The applicant is 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 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
Pursuant to rule 35.13 of the Federal Court Rules 2011 (Cth) the time for filing of an application for leave to appeal to the Federal Court is extended to 14 days after reasons for decision are produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3326 of 2019
| FBD19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 22 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background
Background facts relating to the applicant’s claims for protection and the decision of the tribunal on them are set out in the Minister’s outline for submissions.
The applicant is a male national of India who arrived in Australia on 14 March 2016 holding a Visitor (Subclass 600) visa (CB 21, 52). Although he was previously granted a Tourist (Subclass 676) visa on 20 December 2007, he never entered Australia on that visa.[1]
[1] Court Book (CB) 233, [4]
On 29 March 2016, the applicant made an application for a Protection (Subclass 866) visa.[2] In his Form 866C, the applicant claimed his ethnicity was Tamil and that he was Muslim,[3] and he also set out details of his substantial overseas travel in the last 20 years.[4]
[2] CB 1-37
[3] CB 16
[4] CB 26
The applicant set out his written claims for protection in an accompanying five and a half page typed statement.[5] He also provided copies of pages from his passports[6] and various documents relating to his wife and sons.[7]
[5] CB 38-43
[6] CB 44-111
[7] CB 112-117
On 9 May 2016, the Department received from the applicant a second completed Form 866C form[8] that substantially contained the same information as the earlier Form 866C but provided details of the applicant’s languages,[9] confirmed his previous addresses,[10] employment history[11] and education[12] and briefly set out his claims for protection.[13] The applicant also provided evidence of his identity.[14]
[8] CB 133-158
[9] CB 137
[10] CB 148
[11] CB 150
[12] CB 151
[13] CB 153-155
[14] CB 159-163
In summary, the applicant claimed to fear harm in India on the basis of problems caused by his family’s butchery in a named location. He claimed that his family were Muslim and had operated a butcher’s shop for many generations which sold meat (including beef), mostly to members of the Dalit caste.[15]
[15] CB 38
The applicant claimed that, in the 1980s and 1990s, the Bharatiya Janata Party (BJP) and Hindu Munnani targeted Dalits and Muslims and threatened the applicant’s father for selling beef. The applicant’s father died in late 1997. When the applicant tried to reopen the butcher’s shop in January or February 1998, he was threatened by BJP and Hindu Munnani members, and ran away. His mother was also threatened.[16]
[16] CB 38-39
The applicant claimed he fled to another town, but returned home in April 2000. After his return he was allegedly badly beaten by BJP supporters and hospitalised and had a scrotal operation in May 2000 due to injuries he sustained in the attack.[17]
[17] CB 39-40
In July 2000, the applicant fled India and lived in Bangkok, but returned to India in 2005, 2008, and 2015. During his return visit to India in 2015, the applicant was identified in his home town and was threatened. After this incident, the applicant sent his wife and children to live in a second location, but political activists found his wife and scolded her with bad words. His wife then moved with their children to a third location.[18]
[18] CB 41-42
In March 2016, people went searching for the applicant at his Bangkok home. He was afraid to stay in Bangkok due to the Indian and Burmese mafia and travelled to Australia.[19]
[19] CB 42-43
The delegate
On 2 May 2016, the Department wrote to the applicant and invited him to attend a biometrics interview to be held on 18 May 2016,[20] which he attended.[21] The 2 May 2016 letter also informed the applicant that, unless he requested a protection visa interview with the Minister’s Department within seven days of receiving the letter, the Minister might decide the application without requesting any further information from the applicant.[22] No request for an interview was received by the Minister’s Department, and no interview was held.[23]
[20] CB 119-132
[21] CB 164-165
[22] CB 123-124
[23] CB 172.7
On 17 August 2016, the delegate refused to grant the applicant a protection visa. The delegate relied on independent country information about the treatment of Muslims in India to find that: the applicant did not face a real chance of persecution in India for any s.5J(1)(a) reason;[24] adequate state protection was available to him;[25] and he could safely relocate within India.[26] The delegate was also not satisfied that the applicant faced a real risk of significant harm or met the requirements of s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[27]
[24] CB 176-177
[25] CB 177-179
[26] CB 179
[27] CB 180-181
The Tribunal’s proceedings
On 2 September 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision, which attached a copy of the delegate’s refusal decision.[28] Accompanying his application was a re-typed, but otherwise almost identical, copy of the statement he provided with his protection visa application.[29]
[28] CB 182-188
[29] CB 190-194
On 8 October 2018, the Tribunal wrote to the applicant informing him that his matter was ready for a hearing and inviting him to provide any additional evidence.[30]
[30] CB 202-203
On 22 November 2018, the applicant sent the Tribunal a copy of a letter by Dr Prinsloo dated 10 October 2018, which outlined the applicant’s medical history in relation to his scrotal injury, as told by the applicant to Dr Prinsloo.[31]
[31] CB 204-205
On 1 October 2019, the Tribunal wrote to the applicant inviting him to a hearing by video-link scheduled for 11 November 2019.[32] The applicant accepted the invitation,[33] but on 15 October 2019 requested that he attend the hearing in person.[34] The Tribunal amended its invitation to a hearing on 11 November 2019,[35] which the applicant attended assisted by Tamil (Indian) interpreter.[36]
[32] CB 206-212
[33] CB 213-215
[34] CB 216
[35] CB 217-219
[36] CB 221-223
After the hearing, the applicant requested a copy of the audio recording of the hearing,[37] which the Tribunal provided.[38]
[37] CB 224
[38] CB 225
On 15 November 2019, the applicant provided a brief submission to the Tribunal, which provided a reference to a news article concerning an attack on a Muslim in Tamil Nadu, and also attached evidence of his family’s residence in their most recent location.[39]
[39] CB 226-229
The Tribunal’s decision
On 22 November 2019, the Tribunal made a decision affirming the delegate’s decision to refuse to grant the applicant a protection (Subclass 866) visa.[40]
[40] CB 232-247
The Tribunal summarised the background to the protection visa application and the applicant’s written claims,[41] as well as the basis of the delegate’s decision[42] and the information and oral evidence the applicant provided to the Tribunal.[43]
[41] CB 233-235, [1]-[5]
[42] CB 234-235, [6]-[8]
[43] CB 235-237, [9]-[26]
In particular, the Tribunal:
a)accepted that the applicant was an Indian national;[44]
[44] CB 238, [33]
b)accepted that the applicant may have been threatened in January or February 1998 while at his family’s shop, but did not accept that he suffered any other harm since then for any reason associated with being a Muslim, killing cows or connected to the Dalit caste;[45]
[45] CB 238, [35]
c)found the applicant had provided no supporting information to corroborate his claim of assault at the family shop in 2000,[46] and did not accept that the applicant was of adverse interest to any non-Muslim at that time, since it was more than two years since the shop had closed;[47]
[46] CB 238, [36]
[47] CB 238-239, [37]
d)referred to a medical report by a Dr Prinsloo dated 10 April 2018 and accepted that the applicant had a scrotal operation, but did not accept that this was related to the claimed assault, made nearly 18 years after the claimed attack in 2000, merely repeated claims made by the applicant and did not confirm the cause of his injuries;[48]
[48] CB 239, [38]-[39]) (CB 239, [38]-[40]
e)did not accept that if the applicant was assaulted and hospitalised in 2000 that he would not have lodged any complaint with the police about the claimed attack;[49]
[49] CB 239, [41]
f)found that, if the applicant held genuine fears of harm in India and had fled to Malaysia and Thailand, then he would not have returned to India in 2005, 2008, and 2012;[50]
g)noted the applicant had been granted an Australian Tourist visa in 2007 but made no entry in Australia on that visa. The Tribunal found that was an opportunity to seek permanent protection, and that if he had a genuine fear of harm he would have taken that opportunity;[51]
h)rejected the applicant’s claim to have been threatened while living in Thailand, on the basis that there was no independent or corroborative information to support that claim;[52]
i)found the applicant’s immediate family have continued to reside in India and “have not been the subject of any threats or harassment”, and found this was inconsistent with the applicant’s claim to fear harm for being Muslim or a butcher’s son;[53]
j)found that the butcher’s shop which caused the applicant’s claimed problems had been out of operation for over 22 years. On that basis, the Tribunal did not accept the applicant had a profile which would lead to any harm, since the applicant did not reopen the shop, and has not been involved in selling beef for over 22 years;[54]
k)noted the applicant’s evidence that he lived for two years without any problems in another part of Tamil Nadu;[55]
l)referred to independent country information about conditions for Muslims in Tamil Nadu and found it did not support a claim to fear harm in Tamil Nadu as a Muslim;[56]
m)with reference to a news report dated 12 July 2019 provided by the applicant following the hearing, accepted it described a person who was attacked after eating beef soup. However, it found the report indicated that such events were very rare, and that adequate state protection was available to such victims. Accordingly, the Tribunal found the report did not support the applicant’s claims;[57]
n)found, on the basis of independent country information, that the BJP, members of which the applicant had claimed targeted him, had not been a member of the ruling coalition in India since 2004. The Tribunal found there was no information that indicated the applicant would be prevented from obtaining appropriate state protection in India.[58] Further, the applicant’s own evidence at the hearing that Tamil Nadu is “very peaceful” demonstrated either that he did not face persecution or would be able to obtain adequate state protection;[59] and
o)found that, while the applicant had not raised any direct claim to fear harm in relation to a connection with the Dalit community, he would not fear any harm on that basis because he did not identify as a member of the Dalit community and had only had a limited association with that community.[60]
[50] CB 239, [42]-[43]
[51] CB 240, [44]
[52] CB 240, [45]
[53] CB 240, [46]-[47]
[54] CB 240-241, [48]-[49]
[55] CB 241, [50]
[56] CB 241, [51]-[52]
[57] CB 241-242, [53]-[54]
[58] CB 242, [55]
[59] CB 242, [56]
[60] CB 242, [57]
Having considered the applicant’s circumstances individually and cumulatively, the Tribunal did not accept the applicant faced a real chance of persecution or significant harm for any of the reasons claimed.[61] The Tribunal was not satisfied the applicant met the refugee criterion in s.36(2)(a) of the Migration Act.[62] The Tribunal was also not satisfied that the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act.[63] The Tribunal affirmed the delegate’s decision.[64]
[61] CB 242-243, [58]
[62] CB 243, [59]
[63] [60]
[64] CB 243, [62]
The current proceedings
These proceedings began with a show cause application filed on 17 December 2019. The applicant continues to rely upon that application. There are three grounds in it:
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
2. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to India.
3. The Tribunal constructively failed to exercise its jurisdiction
Particular: The applicant attached by supporters of BJP of Hindu Munnani he had injury his genital area, right hand finger and left hip, applicant provided the medical certificate examined by Dr. JD Prinsloo, Mareeba Hospital QLD the Doctor confirmed operations on applicant scrotum. And the applicant conformed state of Tamilnadu safer than other part of India. But in Tamilnadu is a not problem free state there was many issues reported related to slaughtering, eating beef meat, example the applicant provided newspaper report attacks happen near to applicant home town to the Tribunal corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant credit without first assessing whether the substance of the documents corroborated his claims.
(errors and emphasis in original)
The application is supported by a short affidavit filed with it which I received as a submission. In that affidavit, the applicant asserts actual bias, based on a failure to investigate his claim. In addition to the court book lodged on 27 February 2020, I have before me, as evidence, a further affidavit by the applicant annexing a transcript of the hearing conducted by the tribunal.
I invited oral submissions from the applicant today. He commenced by stating that he is not well educated and may have made mistakes in his application. I permitted him to address what he sees as the mistakes made by the Tribunal, in his own words.
The applicant has a number of complaints about the Tribunal’s decision. He stresses that his claim of persecution is not against the government of India, but against Hindu elements. He asserts that there was a risk of harm evident as recently as 2008. He asserts that a BJP political leader, now resident in Malaysia, was connected to his problems.
The applicant says that he bears scars from an assault he experienced in 2000. The applicant dealt with difficulties he experienced in gathering evidence to support his claims. He gave the Tribunal everything that he had and is dissatisfied with the outcome.
He stresses that he referred a complaint to the police in relation to the assault upon him in 2000. That is verified by the transcript at pages 33 and 34. The applicant acknowledged that his family’s butcher shop had been closed for many years, but he does not consider that resolves the risk of harm. He said that people from a local temple were inquiring about him as recently as 2016.
The applicant asserted in reply that although he told the Tribunal that Tamil Nadu is a peaceful place, it is all relative. While he acknowledges that Tamil Nadu is more peaceful than some other parts of India, he maintains that violence still does occur.
Resolution
In my view, the applicant’s contentions do not rise above a dispute over the merits of the Tribunal decision. Those merits are not within the scope of this Court’s jurisdiction.
There is nothing to support the allegation of bias. It is apparent from the available material that the Tribunal understood the task it had to perform and had regard to all of the available material. The Tribunal was not under an obligation to make its own inquiries. The conclusions reached by the Tribunal were open to it on the material before it.
The applicant also filed and affirmed a supporting affidavit on 17 December 2019, which annexed a copy of the Tribunal’s decision and alleged that the Tribunal failed to investigate the applicant’s claims and that its decision “was affected by actual bias”. Without any particulars to make them meaningful, the bare assertions in the affidavit cannot succeed.[65] In any event, the contentions misconceive the proper role of the Tribunal. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction.[66] The Tribunal was not required to make the applicant’s case for him,[67] and had no obligation to act as cross-examiner or prompt and stimulate an elaboration which the applicant chooses not to embark on.[68] If the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine, then it had no duty to make further inquiries or obtain information beyond what is provided to it by the applicant, except in very limited (but presently inapplicable) circumstances.[69] The applicant’s contentions provide a wholly inadequate basis to assert actual bias. An allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven.[70] No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[71]
[65] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
[66] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]
[67] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176
[68] SZMDB v Minister for Immigration (2008) 105 ALD 499 at [36]-[37]; SZBEL v Minister for Immigration (2006) 228 CLR 153 at [47]; Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 at [40]; Minister for Immigration v SCAR (2003) 128 FCR 553 at [36]
[69] Minister for Immigration v SZIAI and Another (2009) 259 ALR 429;Minister for Immigration v SGLB (2004) 207 ALR 12 at [17], [19], [43] and [124]
[70] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[71] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
Orders made by consent on 30 January 2020 required the applicant to file and serve any amended application and additional evidence by 26 March 2020. Instead, on 20 May 2020 the applicant filed a further affidavit that simply annexed a transcript of the Tribunal hearing held on 11 November 2019. The applicant does not explain what parts of the transcript are relied upon or how it relates to or supports any of his grounds of judicial review or his allegation of actual bias. The transcript does not meaningfully advance the applicant’s case. Rather, it confirms that the applicant was provided with an opportunity to give evidence and present arguments at the hearing, and that the Tribunal took a fresh look at his claims.
The transcript reveals that the Tribunal’s mind was open to persuasion.[72] There is no evidence that the applicant was overborne or intimidated by the Tribunal.[73] For example, the Tribunal:
a)told the applicant that the purpose of the hearing was for him to provide further information, all of which it would consider, and which might lead to it being satisfied that he met the criteria for granting a Protection visa;[74]
b)told the applicant that he could seek an adjournment if he required any further time to comment on any adverse information put to him at the hearing;[75]
c)confirmed that the applicant had no issues with the interpreter;[76] and
d)repeatedly asked the applicant if he had anything further to say during the hearing.[77]
[72] See: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531-532
[73] See: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [31]
[74] T 3.1
[75] T 3.8
[76] T 4.4
[77] T 33.2, 34.7, 35.2
The transcript reveals that the Tribunal put the following information to the applicant for comment:
a)inconsistencies in the applicant’s evidence about problems in is wife’s home village;[78]
b)country information about vigilante cow protection groups;[79]
c)country information about conditions for Muslims in Tamil Nadu;[80]
d)country information about political parties in Tamil Nadu;[81] and
e)the lack of evidence to support the applicant’s claim that his scrotal injury was the result of a violent assault;[82]
[78] T 29.8
[79] T 30.3
[80] T 31.2
[81] T 31.7
[82] T 33.7
I otherwise agree with the Minister’s submissions in relation to the grounds of review. The three grounds in the judicial review application filed on 17 December 2019 are addressed separately below.
Ground 1
Ground 1 states blandly that the “Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A)”. This contention is not supported by any particulars to make it meaningful. A failure to particularise a ground of judicial review is a sufficient basis for it to be dismissed.[83] Without any particulars, the allegation in ground 1 is meaningless and fails to identify an arguable case of jurisdictional error on the part of the Tribunal.
[83] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
In any event, the Tribunal[84] undertook a detailed analysis of the applicant’s factual claims and evidence, including against relevant independent country information, and identified the various concerns that it put to the applicant at the hearing. After completing this analysis, the Tribunal concluded[85] that it was not satisfied that the applicant met s.36(2)(aa) of the Migration Act. Given the Tribunal’s rejection of the applicant’s key factual claims for protection, it was open to it to find that the applicant did not meet the requirements of s.36(2)(aa) of the Migration Act.[86] There is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing his or her claims under the complementary protection provisions.[87] Although the Tribunal’s complementary protection assessment was brief, brevity alone does not reveal error,[88] and there is no basis to suggest that the Tribunal misapplied or misconstrued s.36(2)(aa) or s.36(2A) of the Migration Act.
[84] at CB 238-242, [33]-[57]
[85] at CB 243, [60]
[86] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246]
[87] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[88] SZRMF v Minister for Immigration [2013] FMCA 180 at [12]-[14]; MZZKQ v Minister for Immigration & Anor [2013] FCCA 1634 at [26]; SZSOV v Minister for Immigration & Anor [2013] FCCA 949 at [43]-[44]
Ground 2
Ground 2 alleges that the “Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to India”. Again, this complaint is unsupported by any particulars to make it meaningful. For the same reasons as identified in relation to ground 1, the second ground also fails to identify even an arguable case of jurisdictional error by the Tribunal. In substance, this complaint appears to contend that the Tribunal ought to have come to a different factual conclusion on the basis of its assessment of the applicant’s claims and evidence, but this amounts to an impermissible invitation to the Court to undertake a merits review of the Tribunal’s decision.[89]
[89] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [29]-[31]
Ground 3
Ground 3 asserts that the “Tribunal constructively failed to exercise its jurisdiction”. The particulars refer to the claimed injuries the applicant allegedly sustained when he was attacked by the BJP and Hindu Munnani and allege that the Tribunal failed to engage in an active intellectual process in relation to the medical report and the news article which he had provided. He argues that the Tribunal erred by placing no weight on the documents without first engaging with their contents or assessing the applicant’s credit without first assessing whether his documents corroborated his claims. The contentions in ground 3 are not arguable.
Contrary to the applicant’s contentions, the Tribunal expressly considered the medical report he provided. While it accepted that he underwent an operation on his scrotum, it found that the report, made nearly 18 years after the claimed attack in 2000, merely repeated claims made by the applicant and did not confirm the cause of his injuries.[90] Further, the Tribunal also expressly considered the news article provided by the applicant but found that it indicated that incidents of harm due to eating beef were very rare, and that appropriate state protection was available in relation to such harm.[91] The Tribunal gave cogent reasons for its findings that neither document supported the applicant’s claims to fear harm. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[92] At their highest, these complaints in ground 3 in substance seek impermissible merits review.
[90] CB 239, [38]-[40]
[91] CB 241-242, [53]-[54]
[92] Lee v Minister for Immigration [2005] FCA 464 at [27]
Finally, the contentions in ground 3 that the Tribunal erred in its approach to the applicant’s corroborative documents are misplaced, both factually and legally. The Tribunal did not act in the manner alleged by the applicant in the particulars to ground three. Further, it is not illogical for a finder of fact who is convinced that a witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence even though there is no independent ground for rejection other than the reasons given for disbelieving the witness.[93] There may be circumstances where it is not necessary to pay due regard to corroborative evidence because an applicant’s credibility has been so weakened through cross-examination that the corroborative evidence is of no weight because “the well has been poisoned beyond redemption”.[94] A finding that an applicant’s claims were not credible and that he had fabricated his claims is sufficient to invoke the S20 principle.[95] However, it is not necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected.[96] The principle in S20 establishes that the Tribunal does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.[97]
[93] Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ
[94] Re Minister for Immigration; Ex parte S20/2002 op.cit., at [49] per McHugh and Gummow JJ
[95] Minister for Immigration v SZNSP (2010) 184 FCR 485 at [32]
[96] Minister for Immigration v SZNPG (2010) 115 ALD 303 at [24]; Minister for Immigration v SZNSP op.cit., at [30]-[31]
[97] Minister for Immigration v SZNSP (2010) 184 FCR 485 at [37]-[38]; WAIJ v Minister for Immigration (2004) 80 ALD 568 at [27], [52]
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will therefore 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 scale. The applicant sought, and was granted, an extension of time for an application to the Federal Court for leave to appeal, but did not wish to be heard on costs.
I will therefore order that the applicant is 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 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 July 2020
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