MZAAT v Minister for Immigration - [2014] FCCA 2643

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2643

Catchwords:
MIGRATION – Judicial review – findings that applicant not truthful – alleged failure to deal with an integer – grounds dismissed – independent and unimpeachable basis for the decision.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 91R.

Abebe v Commonwealth (1999) 197 CLR 510
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 15 ALD 630
Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547
Minister for Immigration and Border Protection v SZSRS & Anor (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZZKA v Minister for Immigration and Border Protection [2014] FCA 633
MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
SZTIF v Minister for Immigration and Border Protection and Anor [2014] 285 FLR 251
Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
WZAQU v Minister for Immigration and Citizenship (unreported)

Applicant:

MZAAT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 323 of 2014

Judgment of:

Judge F. Turner

Hearing date:

20 October 2014

Date of Last Submission:

20 October 2014

Delivered at:

Melbourne

Delivered on:

20 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the First Respondent:

Mr Smyth

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed 25 February 2014 and amended application filed 7 October 2014 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 323 of 2014

MZAAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 22 January 2014 (Court Book “CB” p.604). That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) Visa (CB p.295).
The Court refers to the background of this matter set out in the decision (“D”) of the Tribunal as follows:
(3)The applicant is a sixty year old man of Indo-Fijian ethnicity. He claims to have been detained, interrogated and tortured by the Fijian military in 2007 and 2009 in relation to his knowledge of major fraud in which former Prime Minister Laisenia Qarase was implicated, perpetrated by politicians, public servants and company directors of Suncourt Hardware, with whom he was employed from 2001 to 2005 as group internal auditor. He claims that since his departure from Fiji, the military have gone to the house of his brother and nephew on several occasions with a warrant for his arrest in relation to the corruption cases linked to the Suncourt Hardware scam. He claims that if he returns to Fiji he will be arrested and forced to give evidence against Suncourt and Qarase and that once the trial is finished he will be killed by the military regime. He also fears that he will be killed by Fijian extremists who support Qarase and will seek revenge on him for giving written evidence against Qarase particularly because he is Indian. He claims to have been an active member of the Fijian Labour Party and to have been detained, interrogated and harassed by the military in 1987 because of this. He claims to have been arrested in 2008 because of his involvement with the New Movement for Democracy. The applicant has a complex history of physical and mental health problems. His representative has submitted that the withdrawal of psychiatric care to the applicant would constitute cruel or inhuman treatment of punishment because it would be particularly deleterious to the applicant’s mental state as a result of his reliance on psychiatric care and the requisite medication to keep him alive.
(4)The delegate refused the application because she found the applicant did not have a genuine fear of harm and there was not a real chance he would be persecuted. Complementary protection legislation has come into effect since the delegate’s decision.
(5)The applicant appeared before the Tribunal as originally constituted on 6 June 2012 to give evidence and present arguments. Earlier scheduled hearings on 8 February 2012 and 8 March 2012 were postponed at the applicant’s request. The hearing of 6 June was adjourned and the applicant was informed that the resumed hearing would involve discussion of adverse information and aspects of his claims which may cause him distress as well as witness evidence and complementary protection. The resumed hearing scheduled for 28 June 2012 was postponed at the applicant’s request.
(6)As the original presiding member was unavailable, the Tribunal was re-constituted on 12 September 2012. In a submission dated 10 September 2012 the applicant’s representative requested that any adverse information be put to the applicant in writing in order to minimise the detrimental impact of that information. The re-constituted Tribunal advised that while this may be appropriate in respect of some information relating to his case there were further issues which necessitated discussion at hearing and the applicant was invited to appear before the Tribunal as currently constituted on 17 January 2013. This hearing was postponed at the applicant’s request and the Tribunal had regard to medical evidence indicating that the applicant was hospitalised on 5 January 2013 after attempting suicide. The applicant was invited to attend a hearing on 30 May 2013. The Tribunal invited the applicant to provide any updated medical information relevant to the conduct of the hearing or his case more broadly and to request any arrangements necessary to assist him or his representative in the conduct of the hearing.
(7)Extensive evidence relating to the applicant’s mental and physical health is before the Tribunal. This is set out more fully below at [36]-[43]. On 6 May 2013 the applicant’s representative wrote to the Tribunal enclosing new medical reports and stating, in part, as follows:
…. I am concerned about [the applicant’s] well-being at the hearing. He has had severe panic attacks and attempted suicide on many occasions. We have had to call an ambulance to our office when [the applicant] was in a severely traumatised state.
[The applicant] has discussed the possibility of having a mental health professional attend the hearing with him but the cost is something [he] cannot meet.
[The applicant] can discuss external circumstances in an objective manner but when asked to address personal issues which have caused him extreme trauma he is liable to have panic attacks.
In these circumstances I believe it would be far preferable if written questions of a personal nature could be put to [the applicant] to respond in writing.
[The applicant] has every intention of attending the Tribunal hearing on 30 May 2013. However, as I stated earlier, I am very concerned about his ability to give evidence at the hearing and fully participate in the proceedings. …..
(8)The applicant subsequently appeared before the Tribunal on 30 May 2013. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
(9)At the start of the hearing the Tribunal explained to the applicant that it was happy to take the approach suggested by his representative with respect to putting questions of a personal nature to him in writing to enable him to provide a written response so far as this was practical, if that was what he wished. The Tribunal explained that it would not ask him to re-state any of his evidence or to describe things that had occurred in the past unless he wished to do so in response to the specific issues to be raised during the hearing. The Tribunal explained that it was necessary to invite him to attend a further hearing in spite of the concerns his representative had expressed so that the Tribunal could fulfil its obligation under s.425 to invite a review applicant to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(10)The Tribunal explained that what it proposed to do was explain what it saw as the issues arising in relation to the decision under review and that it would be happy for the applicant to respond to any of those issues at hearing, but that it would also be happy to set those issues out in writing so that he could provide a written response after the hearing. The Tribunal explained that it would also ask him if there was anything he had not already raised he wanted to tell the Tribunal and that it had a few specific questions in relation to recent evidence he had submitted to which he could respond either orally or in writing. The Tribunal also received oral evidence from the applicant’s brother [name omitted] and the applicant’s nephew [name omitted]. The Tribunal hearings were conducted with the assistance of an interpreter in the Hindi and English languages.
(11)The applicant indicated that he preferred to provide a written response to the majority of the issues raised and the Tribunal wrote to the applicant on 3 June 2013 setting out the issues raised at hearing and inviting him to comment or respond in writing. The Tribunal also wrote to the applicant on 3 June 2103 under separate cover in accordance with the requirements of s.424A inviting him to comment on or respond to information obtained in oral evidence from his witnesses at hearing. On 17 June the applicant’s representative wrote to the Tribunal requesting an extension of time to respond to the Tribunal’s letters of 3 June, advising that the applicant had been in a motor vehicle accident and was unwell and unable to complete a response. An extension was granted to 19 July. On 31 July the applicant’s representative wrote to the Tribunal requesting that the Tribunal refrain from making a decision for an additional two weeks, advising that his physical and mental health had significantly declined and that when she spoke to him by telephone two days earlier “…[he] could not stop crying during our conversation and was unable to give me instructions.” This request was supported by a letter dated 30 July 2013 from Dr Martin Hill of the Stud Road Medical Centre advising that the applicant was “…experiencing a marked deterioration in mental health to the point of suicide attempt that has required active involvement of psychiatric services. He is therefore not in a stable mental condition sufficient enough to answer questions submitted by a document to the Tribunal…”. A response to the Tribunal’s letters of 3 June 2013 was received on 16 August 2013.
(12)The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.
Complementary protection criterion
(23)If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
(24)‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
(27)The issues (before the Tribunal were)… whether the applicant has a well-founded fear of persecution or whether there are substantial reasons to believe there is a real risk that as a necessary and foreseeable consequence of his removal from Australia to a receiving country he would be subjected to significant harm…
(31)The applicant came to Australia in April 2010 with his then wife, [name omitted], their son…, then aged nine, and his wife’s daughter from a previous marriage…, then aged fifteen. His wife’s son… arrived in Australia separately and prior to the applicant’s arrival and applied for a Protection visa in his own right.
Vulnerability and mental health issues
(32)A number of issues arise for the Tribunal in relation to the applicant’s credibility and reliability as a witness and subsequently in relation to the genuineness of his claimed fear of harm. The applicant spent a substantial period of time living in New Zealand after many of the events he claims give rise to his fear of harm, but returned by choice to Fiji. The applicant has a history of failing to disclose highly significant information, including being charged with assaulting his first wife in Fiji in 1987, his previous travel to the US and New Zealand and his conviction in the US on serious criminal charges and subsequent deportation. The applicant has also acknowledged providing fraudulent letters of support with his Protection visa application. The Tribunal notes that he has subsequently sought to explain and in some cases correct incorrect information he has provided.
(33)In addition, the applicant’s oral and written statements during the course of his application contain significant inconsistencies. Some are relatively minor and may be explained by the significant period of time that has passed since the applicant lodged his application for protection in June 2010 together with the multiple written statements made by the applicant and his oral evidence at his departmental interview and two Tribunal hearings, noting that the applicant utilised the services of an interpreter for his communications for much of the time. In these circumstances, the Tribunal accepts that some inconsistencies are to be expected.
(34)However, the Tribunal considers that other inconsistencies in the applicant’s evidence are not capable of easy explanation and in the context of the concerns outlined above at [32], raise significant questions about the credibility of the applicant’s claims. In particular the Tribunal was concerned about the inconsistencies discussed with the applicant at hearing and put to him for comment in the Tribunal’s letter dated 3 June 2013. In the Tribunal’s view, these matters, set out below in more detail at [92]-[97], are significant to the applicant’s claims and go to the necessary assessment of the risk to the applicant in Fiji.
(35)The applicant’s representative responded to the Tribunal’s letter on 16 August 2013, stating among other things that as outlined in his statutory declaration of 21 April 2011 the applicant’s initial Protection visa application contained a number of claims that were untrue and were included in the application under duress at the instigation of his former wife… and her son…. It is submitted that the statutory declaration of April 2011 sets out an accurate version of events and that claims made in his Protection visa regarding his arrest and interrogation in April 2007 were incorrect and included by his former wife and her son without his consent. No explanation is provided of how this claim was included “without his consent” in a written statement bearing his signature. The Tribunal has serious reservations about the claim that this information was included without the applicant’s consent.

Credibility

The Tribunal stated:
(48)Having regard to all the evidence before it and to the Guidance on Vulnerable Persons, the Tribunal accepts that the applicant has suffered from mental health problems for the entire duration of his stay in Australia, that his mental health has deteriorated significantly on a number of occasions and that at times he has been incapable of providing instructions to his representative or giving evidence to the Tribunal. However, the Tribunal does not accept that these difficulties account for the applicant’s initial failure to disclose his criminal history and travel history, his provision of fraudulent documents or inability to remember specific details. The Tribunal finds that cumulatively, these matters detract very significantly from his credibility. The applicant’s non-disclosure of specific information and provision of fraudulent information is discussed in more detail below. Other difficulties are dealt with as they arise.
(51)The Tribunal accepts that the applicant was motivated at least in part by shame in his decision not to disclose this history in his visa applications for Australia. The Tribunal notes that the applicant has himself stated that he feared his applications would be refused if he declared his criminal history and finds that on his own evidence he has demonstrated a willingness to lie, make false declarations and knowingly withhold information in order to achieve his ends. Notwithstanding his acknowledgement of the offences in question when this information was put to him by the delegate, the Tribunal finds that his failure to declare these offences not once but twice leads it to have significant doubts about his credibility and the reliability and veracity of his evidence more generally.
(58)The Tribunal accepts that the applicant may genuinely believe that all the events he has recounted occurred and as set out below, the Tribunal accepts that some of these events did in fact occur. However, the Tribunal finds that the applicant has sought deliberately to overstate the level or significance of his involvement in a number of incidents and that together with his history of withholding information in respect of critical past events and the multiple inconsistencies in his evidence with respect to key aspects of his claims, this detracts very significantly from the credibility and reliability of his evidence overall.

The Court refers to W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, where Tamberlin and R D Nicholson JJ stated at [64]:
“The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 ; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
The Court does not find that the Tribunal has failed to use, or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court refers to the following decisions:
·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:
“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings open to the primary decision-maker par excellence (Ibid).
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
·In Kopalapillai (supra) at pp.558 to 559 the Full Federal Court said:
“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.”
Having regard to the Tribunal’s findings on credibility, it found that the applicant sought to deliberately “overstate the level and significance of his involvement in the Labour Party, the protest march and Freedom and Democracy for Indians Movement” (D [61]).
The Tribunal accepted that in May 1987, the Applicant was arrested and released after signing undertakings, but did not accept that the applicant was identified as a leader of the group called the Freedom and Democracy for Indians Movement (D [63]).
The Tribunal found that some of the applicant’s claims in relation to Suncourt Hardware were implausible, and explained that to the applicant at the hearing on 30 May 2013. The Tribunal set out its concerns in a letter to the applicant dated 3 June 2013 (CB p.525). The applicant was given until 17 June 2013 to respond.
Throughout its decision, the Tribunal set out the parts of the applicant’s evidence that it did not accept, found inconsistent or implausible.
As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers again to the decision in Kopalapillai (supra).
In Kamal v Minister for Immigration & Multicultural Affairs (2002) 126 FCR 467, Mansfield J stated at [36]:
“It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.”
The Tribunal did not accept that the applicant was arrested, interrogated and tortured in 2006, 2007 or 2009 (D [101]).
The Tribunal found that the applicant was not involved in the New Movement for Democracy, and that he was not wanted by the Army or partners or directors of his former employers; That he was not arrested, interrogated or tortured in 2006, 2007 and 2009; That he was not required by Fiji Inland Revenue and Customs Authority (“FIRCA”) to continue working at Suncourt Hardware to pass information to them secretly; That he was not identified as a security risk to his country, and that he was not wanted as a “star witness” against former Prime Minister Qarase. The Tribunal did not accept that the applicant had a profile which resulted in his name being placed on a blacklist, or that he paid a bribe to secure his release from Fiji in 2010 (D [105]).
The Tribunal found that the military did not visit the home of the applicant’s brother searching for the applicant (D [124]).
The Tribunal did not accept that the applicant possesses unique information about Qarase’s involvement in the Suncourt/Ministry of Agriculture scam (D [150]).
The Tribunal found that there is not a real chance that the applicant would be subjected to serious harm within s.91R of the Migration Act1958 (the “Act”) for reason of his real or imputed political opinion, his race, his religion or for any other convention related reason if he returned to Fiji now or in the reasonably foreseeable future. The Tribunal found that the applicant’s fear is not well founded (D [155]).
The Tribunal considered complementary protection under s.36(2)(aa) of the Act, and was not satisfied that there are substantial grounds for believing that the applicant will be subjected to significant harm as defined by s.36(2A) of the Act (D [157]).
The Tribunal was not satisfied that there is a real risk that if returned to Fiji, the applicant would be subjected to significant harm as defined in s.36(2A) of the Act (D [180]).
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, or that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal found that the applicant is not a reliable witness

(D [118]).
The above findings of fact are not amendable to review.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]-[11]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
“By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
The Court refers to the following decisions:
·Ex parte Durairajasingham (supra) per McHugh J at [67]:
“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact (Ibid)
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai (supra) at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Wu Shan Liang (supra) p.272.
·Abebe (supra) at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
The Tribunal considered the applicant’s claims:
·To fear harm for reason of his imputed political opinion (D [126])
·To fear harm for reason of his race as an Indo-Fijian (D [121])
·To fear harm for reason of his Hindu religion (D [124]); and
·That he will be denied necessary medical care if he returns to Fiji (D [120]).

Grounds for Judicial Review

The grounds for judicial review are set out in the Amended Application filed on 7 October 2014 as follow:
(1)The Tribunal failed to carry out its core function of reviewing the decision in question in that the Tribunal failed to make necessary findings of fact regarding evidence or claims of past harm in considering the risk of harm in the future. Specifically, the Tribunal did not make a finding regarding the applicant’s claim to have been interrogated and beaten at a military camp in 1987.
(1A)The Tribunal ignored relevant corroborating evidence of a number of highly qualified health experts that the applicant suffered post-traumatic stress disorder as result of his arrest and torture in Fiji.
Particulars
Documents at Court Book pages 383, 384, 387, 389, 390, 398, 410, 412-413, 446-447, 454, 465-466, 516, 554, 558, 559, 560, 561, 586, 588, 598-599.
(2)The Tribunal failed to carry out its core function of reviewing the decision in question in that the Tribunal failed to make necessary findings of fact. Specifically, the Tribunal accepted that the applicant was suffering post-traumatic stress disorder but made no finding about what trauma has caused the disorder.
(3)The Tribunal failed to form the state of satisfaction required for the purposes of the review in respect of s36(2)(a) and s36(2)(aa) of the Migration Act 1958 by ignoring evidence and claims that:
(a)the applicant suffered post-traumatic stress disorder as a result of physical harm/torture suffered in Fiji;
(b)the applicant’s capacity to address inconsistencies in his evidence was detrimentally affected by the poor state of his mental health; and
(c)the applicant has been interrogated and beaten in a military camp in Fiji in 1987.
(5)The Tribunal failed to take into account relevant considerations, namely:
(a)the detrimental impact of the applicant’s mental health upon his capacity to address what the Tribunal perceived to be inconstancies in the applicant’s evidence; and
(b)the difficulty faced by the applicant’s instructing solicitors in obtaining instructions from the applicant regarding his claims and evidence in light of the applicant’s poor mental health.
(6)The Tribunal took into account an irrelevant consideration, namely, that the applicant had not sought to rely on his mental health difficulties as the reason he had provided evidence the Tribunal perceived to be inconsistent.
(7)The Tribunal failed to take into account whether the army threatened to burn down the applicant’s kava shop and failed to consider whether the deprivation of his livelihood amounted to persecution.

The hearing before the Court

At the hearing before the Court on 20 October 2014, Ms Costello of Counsel appeared for the applicant and Mr Smyth of Counsel appeared for the first respondent.

Submissions for the Applicant

Ms Costello presented a summary of oral submissions.
Ms Costello said that the first claim is the failure to consider an important claim in relation to the arrest, interrogation, assault and being forced to sign undertakings in relation to political activities with the Fiji Labour Party in 1987. The Court finds that the Tribunal considered that claim at (D [59], [63], [64], [127], [131]), and found that there is not a real chance that the applicant would be seriously harmed for reason of his political opinion arising from his former membership of, and activity in relation to, the Fijian Labour Party should he return now or in the reasonably foreseeable future (D [131]). The Tribunal therefore considered the claim and gave the reasons for its finding (D [127]-[131]).
Ms Costello alleges that the applicant claimed to be at risk of serious harm as a person with an adverse profile (CB pp.360, 363-364). The Tribunal found that the applicant sought to deliberately overstate the level and significance of his involvement in the Labour Party, the protest march and the Freedom and Democracy for Indians Movement (D [61]).
The Court finds that the claim was not overlooked or ignored by the Tribunal.
Ms Costello alleges a failure to consider the claim about what happened in 1987. As found above, the Tribunal considered that claim (D [126]-[127]).
Ms Costello referred to decisions on a failure to consider a claim or evidence. In MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 at [45], Bromberg J decided that the absence of reasons about material questions of fact leads to an inference that the Tribunal did not address the claim
However in the present case, it is clear that the Tribunal addressed the claim (supra).
Ms Costello referred to the decision in Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at [62] about the failure to consider a claim advanced by an applicant.
In the present case there was no failure to consider the claim about events in 1987 (D [59], [63], [64], [126], [127] and [131]).
Ms Costello referred to the decision in SZTIF v Minister for Immigration and Border Protection and Anor [2014] 285 FLR 251 where at [34] Manousaridis J referred to the failure to consider a claims, and the decision in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 15 ALD 630 that:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of the an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The Court does not find that the claims of torture in 1987, if found to be true, would be dispositive of the Tribunal’s review of the delegate’s decision, as the Tribunal did not accept much of the applicant’s evidence.
Ms Costello’s second issue is that the Tribunal erred in its treatment of the medical evidence, and that it:
·Failed to make a finding about what caused the applicant to suffer from post-traumatic stress disorder (“PTSD”)
·Ignored corroborating evidence that his health problems were caused by his past experiences in Fiji
·Ignored the applicant’s mental health as an explanation for inconsistencies in the applicant’s evidence. The Court finds that the Tribunal took account of this issue (D [7], [9], [32]-[34], [36]-[43] and [45]-[46]) (post).

The Court finds that the Tribunal considered extensive medical evidence about the applicant’s health (D [36]-[45]). It did not reject that evidence (D [46]). There was therefore no need for it to consider the corroborative evidence.
Ms Costello referred to the decision in Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108 where the Court stated at [55] that:
“In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so. I conclude that there is no such reason here.”
Ms Costello referred to the decision in Minister for Immigration and Border Protection v SZSRS & Anor (2014) 309 ALR 67 as to the distinction between claims and evidence.
Ms Costello referred to the decision in WZAQU v Minister for Immigration and Citizenship (unreported) about a decision maker having to consider every claim that clearly arises.

Submissions for the First Respondent

Mr Smyth addressed the applicant’s claim that the Tribunal did not make a finding regarding the applicant’s claim to have been interrogated and beaten at a military camp in 1987. That claim is set out at (D [59]-[63]) and dealt with at (D [63], [64], [127] and [131]).
Mr Smyth submits that the 1987 events were not a free standing integer of the applicant’s claims but part of a claim as to political opinion. The Court accepts that contention.
Mr Smyth submits, about the applicant’s complaint that the Tribunal did not make a finding about what caused the applicant’s PTSD, that such a finding was not necessary as it could not have established a Convention nexus or the basis for complementary protection. The Court accepts that contention.
Ms Smyth submits that the Tribunal recognised the difficulties caused to the applicant by his health problems in making his claims (D [46]).
Mr Smyth referred to where medical evidence was considered by the Tribunal (Transcript “T” pp.26-31). The Court accepts those submissions.
The Court finds that the contention that medical evidence was ignored is incorrect.

Findings of the Court on the grounds of judicial review

Ground one complains of a failure to make findings of fact regarding evidence or claims of past harm, specifically that the Tribunal did not make a finding regarding the applicant’s claim to have been interrogated or beaten at a military camp in 1987.
The Tribunal considered events in 1987 (D [59]-[64], [126] and [127]).
In VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:
“The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence.”
And at [31]:
“The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]- [47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.”
In SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 Lindgren J decided at [58]:
“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”
A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error: see VQAB (supra) at [25].
It is apparent that the Tribunal considered events in 1987. A finding of fact on them was not necessary.
Ground 1A alleges that the Tribunal failed to consider corroborating medical evidence that the applicant’s PTSD was caused as a result of his arrest and torture in Fiji. The Court accepts the submissions of

Mr Smyth as to where that evidence was considered.
Ground two makes similar claims as ground one. The applicant’s mental health issues were considered (from D [32]). The Tribunal was not required to make a finding of fact about what trauma caused the applicant’s PTSD. The cause of the PTSD could not show a Convention nexus or establish a right to complementary protection.
Ground three claims that the Tribunal ignored evidence and claims that:
(a)the applicant suffered post-traumatic stress disorder as a result of physical harm/torture suffered in Fiji;
(b)the applicant’s capacity to address inconsistencies in his evidence was detrimentally affected by the poor state of his mental health; and
(c)the applicant has been interrogated and beaten in a military camp in Fiji in 1987.
A finding on (a) was not necessary; (b) and (c) were dealt with.
The Court finds that those matters were considered (D [63]).
Ground four of the Amended Application was deleted.
Ground five alleged that the Tribunal failed to take into account:
(a)the detrimental impact of the applicant’s mental health upon his capacity to address what the Tribunal perceived to be inconstancies in the applicant’s evidence; and
(b)the difficulty faced by the applicant’s instructing solicitors in obtaining instructions from the applicant regarding his claims and evidence in light of the applicant’s poor mental health.
The Court refers to the following decisions:
·Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24.
·Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J.
·Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8.
·Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].
In MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314, Middleton J said at [13]-[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).”
The Court again refers to the decision in VQAB (supra) at [25] and [31].
As held in Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 per Rares J at [46]:
“The tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at 641 [47] “the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
A failure to take into account relevant considerations can only amount to jurisdictional error where the decision-maker is bound to take those matters into account. Similarly, taking into account irrelevant considerations can only amount to jurisdictional error where the decision-maker is bound not to take those matters into account: see Peko-Wallsend (supra) at 39-40.
In any event the Tribunal took the following matters into account:
(a)the detrimental impact of the applicant’s mental health to address perceived inconsistencies (D [7], [9], [32]-[34], [46]).
(b)the difficulty faced by the applicant’s instructing solicitors in obtaining instructions (D [48])
Ground six claims that the Tribunal took into account an irrelevant consideration. The Court refers to the decision in Peko-Wallsend (supra). The Court finds no error of law.
Ground seven claims an alleged failure by the Tribunal to take into account whether the army threatened to burn down the applicant’s kava shop and failed to consider whether the deprivation of his livelihood amounted to persecution. The Court finds that the Tribunal considered the alleged threat by the army to burn down the shop (D [101]). The Tribunal found that the shop was burgled as a result of criminal activity (D [102]). It was not an integer of the applicant’s claims that the closure of the shop amounted to persecution through the deprivation of his livelihood. The Tribunal found that the shop was probably closed by the army “as a public safety measure” (D [102]). The applicant produced no evidence to show persecution.
The grounds for judicial review are dismissed.
It is clear from the Tribunal’s decision that it affirmed the decision of the delegate because it found that the applicant was not a reliable witness, and did not accept much of his evidence. Those findings are not amenable to review and are an independent and unimpeachable basis for the decision.
Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
[1] [1994] 1 SCR 202 at 228.
[2]Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Kirby J in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [88]-[89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:
“… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].
As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:
‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’ (emphasis added)
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
Even if the Court had found technical breaches by the Tribunal (and it has not), it would deny prerogative relief as the Tribunal found that the applicant is not truthful and that his grounds are not true.
The application for judicial review is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 20 November 2014

Corrections

The judgment has been amended to comply with section 91X of the Migration Act 1958.