MZYIC v Minister for Immigration

[2010] FMCA 712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIC v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 712

MIGRATION – Whether “inconsistent” evidence before the Tribunal – “weight” is a matter for the Tribunal.

“CONVINCING EVIDENCE” – Defined.

Migration Act 1958 (Cth), ss.65, 414, 474, 476

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of NSW v Quin (1990) 170 CLR 1
Kamal v Minister for Immigration (2002) 126 FCR 467
Kopalapillai vMinister for Immigration & Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265
Minister for Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Rajakaruna & Ors v Minister for Immigration & Ors [2004] FMCA 1021
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43
SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 (FCA/FC)
WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: MZYIC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 479 of 2010

Judgment of: Turner FM

Hearing date: 17 August 2010

Date of Last Submission: 17 August 2010

Delivered at: Melbourne

Delivered on: 20 September 2010

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed 1 April 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 479 of 2010

MZYIC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 3 March 2010. That decision affirmed the decision of the Delegate not to grant the applicant a Protection (Class XA) visa.

2. The main issues relevant to the review are:

   a)Whether there was “inconsistent evidence” before the Tribunal.

   b)Whether the Tribunal was entitled to require “convincing evidence”.

3. The grounds of the application for judicial review are set out in the application filed on 1 April 2010. Ground one was abandoned in para.8 of the applicant’s Contentions of Fact and Law. The remaining grounds are as follows:

   (2)The decision of the Refugee Review Tribunal (“the Tribunal”) was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the applications and its powers to conduct a review under s414 of the Act. The Tribunal exceeded its jurisdictions and/or constructively failed to exercise jurisdiction.

   Particulars

   The Tribunal characterised two parts of the Applicant’s evidence as containing “inconsistencies” (par [53]) when in truth they could not be so described. There was no evidence to support such finding of inconsistency which was integral to the ultimate determination that the Applicant did not have a well-founded fear of persecution because of his association with the SSNP. Further or in the alternative the tribunal made errors of fact in misunderstanding or misconstruing a claim advanced by the applicant and based its conclusion in whole or in part upon the claim so misunderstood or misconstrued.

   (3)The decision of the Refugee Review Tribunal (“the Tribunal”) was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the applications and its powers to conduct a review under s414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.

   Particulars

   The Tribunal failed to apply the test of well-founded fear and/or the correct standard of proof in dealing with claims of past persecution in making a finding that that there was no convincing evidence to attribute to his political activities for the SSNP the incident which the Tribunal on the basis of contemporaneous medical evidence accepted he had suffered severe injuries requiring hospitalisation.

4. At the hearing before the Court on 17 August 2010, Mr Gibson appeared for the applicant and Ms Latif for the first respondent.

Ground Two

1. Mr Gibson amended ground two to read:

   “The Tribunal characterised one part of the applicant’s evidence as containing inconsistencies, when in truth they could not be so described, as there was no evidence to support such a finding.”

2. Mr Gibson submits that there was no evidence for the Tribunal’s finding (at Court Book (“CB”) 194 [53]) that there were “inconsistencies in the evidence about the incident of April 2008 in Hrar.” The Tribunal explained how it concluded that there were inconsistencies in the evidence about the incident in March 2008, and then the incident of April 2008 in Hrar. The applicant said in his submissions that the men had their faces covered and he could not recognise any of them. The Tribunal stated that:

   “At the hearing when asked how he knew they were from the FM he said they had a flag on their car.”

   The Tribunal found the evidence was inconsistent. That finding of fact was open to the Tribunal on the evidence put before it and it not amendable to review.

   As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and 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 to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

   As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”

   The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

   The Court does not make that finding in this case.

   “Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”:Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.

   The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

   “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

   There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

   The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

3. The Tribunal then made a finding of fact that it did not accept that the perpetrators of these attacks were from the Future Movement (“FM”). That finding or fact was open to the Tribunal on the evidence and is not amenable to review.

4. The Court rejects Mr Gibson’s submission that there was no evidence to support those findings of fact by the Tribunal.

   In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “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 merits of the case put to the Tribunal.”

   As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]:

   “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 following the decisions:

   “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for 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. : Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”

   The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

   “A wrong finding of fact is not jurisdictional error.”Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.

   The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal.  The challenge is no more than an invitation to review the merits.  The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his honour had said:

   “16 I have considered all of the matters put to me.  The relevant principle is clear.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court.  The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so.  As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

   “A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning.  See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”

   Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697:

   “31 This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal.  The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596).  The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J).  The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]).  Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’.  No error is established.”

   The same conclusion was reached in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, where Allsop J said:

   “11 The notice of contention, in ground 1, sought to place another characterisation upon this part of the reasoning of the Tribunal.  It sought to charaterise it as displaying sufficient irrationality for the decision to be set aside by reference to what was said in Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. …What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, at best, what Gleeson CJ said in Applicant S20.  In such cases, all one has really done, at best, is demonstrate how an error of fact came to me be made.  Generally, such errors will be within jurisdiction.  All that the Tribunal was doing at this point in its reasons was explaining why it found the respondent’s version of what happened unpersuasive.”

   In WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Nicholson J said:

   “37 The appellant also relied on the contention that the Tribunal’s finding in the core paragraph was ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’…I accept the submission of the respondents that a body of the Federal Court authority has made it clear that, notwithstanding the decision of the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S 20/2002 (2003) 198 ALR 59, want of logic, or rationality, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional: NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 and VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA at [76]-[79].”

5. Mr Gibson’s submission that he cannot see the inconsistency in the evidence is of no significance. That was a matter solely for the Tribunal to determine. A finding by the Court that there was no inconsistency would be a finding of fact and beyond the present functions of the Court.

1. Mr Gibson relied on the decision in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] as follows:

   “This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (`S20') at 62, 67, 76, 90-91.”

2. The Court finds that there was evidence to support the Tribunal’s conclusion and Wednesbury unreasonableness has not been established.

3. Mr Gibson referred then to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 in particular [11-13] as follows:

   “11 It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement. Whether or not the reported event occurred, the cited passage was certainly a mention of an event that, if it happened, was supportive of the male respondent’s claimed fear of persecution on account of his Jewishness. Moreover, if it happened, it was indicative of an attitude that would support that claim.

   12 The passage set out in para 10 above did not appear in the 2001 edition of the Report. This may explain why the Tribunal member failed to have regard to it when preparing his reasons for decision. Whatever the reason for the omission, it was incorrect for the Tribunal to make the statement that it did.

   13 The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error. That means that Walters FM was correct in granting prerogative relief.”

4. In the present case the Tribunal undertook an evaluation, the outcome of which was a finding of fact that is “invulnerable to judicial review.”

5. Ground two is dismissed.

Ground Three

1. Mr Gibson states that this ground “stems from the finding and the treatment of the hospital certificate.”

2. Mr Gibson referred to the translation of the hospital report (CB 106) and to para.53 of the Tribunal’s decision (CB 194) where it stated:

   “The Tribunal accepts that the applicant was injured in some manner on 15 April 2008 and that this required hospitalisation as per the certificate, but there is not convincing evidence for the Tribunal to attribute this incident to his work for the SSNP.”

3. Mr Gibson referred to what the Tribunal stated in [51] about the letter from the doctor at Rahal Hospital as follows:

   “The letter from the doctor of Rahal Hospital is also undated. It attests to the applicant being hospitalised for injuries following a bashing on 15 April 2008. It was faxed from Lebanon on

   
   

   3 January 2010. The Tribunal gives some weight to this letter and will discuss the details below.”

4. Mr Gibson submits that the letter is a very significant and important piece of corroborative evidence.

   As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”

   The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

   The Court does not make that finding in this case.

   As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]: “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court.”

   As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and 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 to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29] as follows:

   “The weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

5. It is for the Tribunal alone to decide what weight it gives to evidence.

6. Mr Gibson referred to the decision in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 where North and Lander JJ stated at [36]:

   “When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand.”

7. Mr Gibson submits that the letter from the doctor at Rahal Hospital was corroborative evidence that the bashing was because of the applicant’s work for Syrian Social National Party (the “SSNP”).

8. It can be seen that the letter says nothing about who was responsible for the bashing or whether it was because of the applicant’s work for the SSNP (CB 106).

9. Mr Gibson contends that the Tribunal should have given far more weight to the letter (Transcript “T” p.10, l.30). Weight however is a matter for the Tribunal Tefonu, A125 of 2003, Lee, Wu Shan Liang and SZINP supra.

10. The Tribunal made a finding of fact “that there is not convincing evidence for the Tribunal to attribute this incident to his work for the SSNP.” That finding was open to the Tribunal and is not amenable to review.

11. Mr Gibson contends that the Tribunal imposed a standard that was too high by requiring “convincing evidence” (CB 194 [53]). He referred to the decision in Rajakaruna & Ors v Minister for Immigration & Ors [2004] FMCA 1021 by then FM Bennett at [39] that there is no requirement in the Migration Act 1958 (the “Act”) that there be “compelling evidence” with respect to some points in the applicant’s claim. The definition of “compel” in the Oxford Dictionary includes “to urge irresistibly, to constrain, force, oblige.” That is to be contrasted with the definition of “convincing” (Ibid) (Exhibit R1) which means “to persuade by argument or proof.” Mr Gibson conceded, properly, that “compelling” is a higher test than “convincing” (T p.12, l.28). The decision in Rajakruna is not relevant in this case.

    “Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.”

    The Court refers to the following decisions:

    “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”

    A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451. MIEA v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v MILGEA (1992) 38 FCR 191.

    The Court applies the following decision in another matter:

    “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”

12. For an applicant to satisfy the Tribunal that all statutory elements are made out, they must persuade the Tribunal by argument or proof that that is so; in other words an applicant must “convince” the Tribunal. The material must be probative or persuasive. The Tribunal did not err by requiring “convincing evidence.” To impose a lower standard would mean to not require that the Tribunal be persuaded.

13. Ms Latif referred to the applicant’s description of the incident on

    
    

    15 April 2008 at CB 100 [25], and then to CB 191 at [36] where the reference is made to “the flag on the car”. Ms Latif relied on the statement in [19] of SFGB supra about “the Tribunal making a finding where there is no evidence to support the finding.” Here there was evidence to support a finding of inconsistency.

14. Ms Latif referred to the following passage in Kamal v Minister for Immigration (2002) 126 FCR 467 per Mansfield J 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.

15. Ms Latif submitted as to ground two that the Tribunal did not misunderstand its task of determining what facts had been established by the applicant. She submits that the statements relied on by the applicant in Rajakaruna are obiter.

    It is not necessary for the Court to determine that issue as Rajakaruna involved a different standard of proof and is not relevant here.

16. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

17. The application for judicial review is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 20 September 2010