MZZHL v Minister for Immigration
[2014] FCCA 1036
•23 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZHL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1036 |
| Catchwords: MIGRATION – Failure to consider relevant evidence – the alleged imposition of an onus of proof – need for corroborative evidence – dispositive finding that concerning applicant’s credit – s.447(2) application for extension of time – merits of substantive application determined – extension of time refused – substantive application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.477(2) |
| Abebe v Commonwealth of Australia [1989] HCA 14 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Saak v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 SZIEW v Minister for Immigration and Citizenship [2008] FCA 5 to 2 R v War Pensions Entitlement Appeals Tribunal; ex parte Bolt (1933) 50 CLR 22 7 |
| Applicant: | MZZHL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 279 of 2013 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 15 August 2013 |
| Date of Last Submission: | 15 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanton |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 is dismissed
The application filed on 7 July 2013, as amended, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 279 of 2013
| MZZHL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 7 July 2013, later amended, the Applicant seeks a review of a decision of the Second Respondent (“the Tribunal”) dated 14 January 2013; which decision affirmed an earlier decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa.
The Applicant was 17 days out of time in respect of the filing of his application. Accordingly, he applied for an extension of time pursuant to s.477(2) of the Migration Act 1958 (“the Act”). At the outset of the hearing I informed the parties that before determining the question of an extension of time, I would first determine whether the application has merit by having a full hearing. If I was to find the application lacks merit, then that finding would be dispositive of the application for an extension of time.
Background and Applicant’s claims
The Applicant claimed to be a Sunni Muslim who was born on
16 January 1995 and who had lived his entire life, before leaving to come to Australia, in the Al Mansour district of Baghdad, Iraq.
The Applicant’s father, he claimed, was the principal of a primary school in the Al Mansour district, was abducted by a group who raided the family home in 2008. The Applicant also claimed to have been seriously assaulted during this raid. It was claimed that the father’s abduction and disappearance was because of his Sunni religion and his imputed political association with the former Ba’athist regime in Iraq; which imputed political association was buttressed by the fact that he was a teacher, an occupation generally associated with the Ba’athist regime. Earlier in 2004, it was claimed, the Applicant’s father fled from Iraq to Syria as he feared the Al Mahdi Army was making him feel threatened and that he was at risk because of his job. Whilst in Syria, the Applicant’s father continued to financially support his family back in Iraq. The father, however, returned in 2008, but after six months he was abducted and has not been seen or heard of again. He is feared dead.
The Applicant continued to live with his family in the Al Mansour district until 2012 when he received an anonymous threatening note addressed to him. He believed the note had come from the same people that had abducted his father. The note threatened that if he and his family did not leave Iraq he would end up like his father.
After receiving the note, the Applicant claimed that he was able to obtain a visa to go to Jordan. He was able to obtain that visa because his maternal uncle was a Jordanian citizen. Accordingly, the Applicant left Iraq in April 2012, flew to Jordan to stay with his uncle for approximately a week until he arranged with a people smuggler for him to travel from Jordan to Malaysia by air. He left Jordan with his passport, the threatening note, his birth certificate, his national ID and his citizenship certificate.
The Applicant claimed that all of the above documents that confirmed his nationality and his reason for leaving Iraq were disposed of at the behest of the people smuggler. He arrived on Christmas Island as an irregular maritime arrival on 11 May 2012.
The Applicant claimed he would suffer persecution if he was returned to Iraq in the form of abduction and/or arbitrary arrest and detention, extortion, physical assault and/or torture, and possible death at the hands of the Shi’a militia, including the Mahdi Army and/or local security forces in collusion with the militias on account of, either cumulatively or separately:
(i)His imputed political opinion in favour of the former Ba’athist regime on the basis of-
·his Sunni religion;
·his father’s position as a school principal and public servant in the Ba’athist regime.
(ii)His membership of his father’s family, being a particular social group;
(iii)His Sunni religion; and
(iv)His membership of a particular social group, being “fatherless children” or alternative formations thereof.
The Applicant also made submissions in support of a claim for complimentary protection.
The Tribunal’s decision
The Tribunal’s primary finding was that the Applicant was not credible; which finding was dispositive of “each and every material particular of his claim to fear harm”[1]
[1] Tribunal's decision at [83]
A pivotal aspect of the Applicant’s claims was that he had lived his entire life in the Al Mansour district of Baghdad; which the Tribunal found was implausible because of the Applicant’s inability to identify significant features of that district.
Grounds of review
In an amended application the Applicant set out 4 grounds of review:
Ground 1
The decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction in that the Tribunal asked itself the wrong question and/or misunderstood its function and/or failed to take into account relevant considerations and/or denied the Applicant procedural fairness in its assessment of the Applicant’s claims and credibility.
Particulars
(a)The Tribunal made significant adverse credibility findings against the Applicant and rejected the claim that he was an Iraqi national.
(b)The Tribunal failed to approach the assessment of the Applicant’s credibility with the necessary caution.
(c)In addition, the Tribunal failed to take into account the following factors in its approach to the Applicant’s credibility:-
(i)the Applicant’s status as an unaccompanied minor;
(ii)the Applicant’s period of immigration detention; and
(iii)the Tribunal’s “vulnerability guidelines” and the UNHCR guidelines on international protection claims for children.
Ground 2
The Tribunal committed jurisdictional error by failing to take into account a relevant consideration.
Particulars
(a) The Tribunal rejected all of the Applicant’s material claims and made general adverse credibility findings against him.
(b) The Applicant had claimed that the militia had previously raided his family’s home, kidnapped his father and seriously assaulted him as a 13-year-old at the time.
(c) There was medical evidence before the Tribunal capable of corroborating this claim.
(d) This evidence was important to the Applicant’s claims and relevant to the credibility findings.
(e) The Tribunal failed to have regard to this evidence.
Ground 3
The Tribunal’s ultimate basis for the rejection of all of the Applicant’s evidence was unreasonable and illogical and/or failed to consider all of the Applicant’s claims.
Particulars
(a)The Tribunal identified an alternate basis for the rejection of all of the Applicant’s claims.
(b) The alternate basis is affected by the same error identified in Ground 1.
(c) The finding of the Tribunal to reject all of the Applicant’s claims on this basis was unreasonable and/or illogical.
Ground 4
The Tribunal committed jurisdictional error by imposing a burden of proof on the Applicant.
Particulars.
(a) The Tribunal did not accept that the Applicant was an Iraqi citizen.
(b) The Tribunal considered it implausible that the Applicant was “unable to produce any form of corroboration documentation” relevant to the issue.
(c) The Applicant’s inability to produce corroborative documentation contributed to the adverse credibility findings made by the Tribunal, and to the rejection of all of the Applicant’s claims.
Contentions and consideration
Counsel for the Applicant primarily addressed me on grounds 1 and 4, and relied upon written submissions previously filed in respect of grounds 2 and 3. The first ground alleged that the Tribunal failed to exercise the necessary caution or restraint in its appraisal of the evidence of the Applicant. This is particularly so when, it was said, the Tribunal was dealing with evidence of a child taken in difficult circumstances; in the first instance on interview on arrival at Christmas Island, the difficulties with language and translation, and the lengthy period of detention. Counsel for the Applicant, both in written submissions and before me, gave significant emphasis to the fact that the Applicant was a child and in those circumstances guidelines (the Tribunal’s and that of the UNHCR) should be used by the Tribunal to direct its mind to the difficulties experienced by children and how to approach children’s evidence. The Applicant did not put it so high as to say that the guidelines should determine the Tribunal’s consideration of the Applicant’s evidence, but emphasised, as was the case in Nikac v Minister for Immigration and Ethnic Affairs[2], such guidelines are a relevant consideration in the making of a decision. The Applicant complained that the Tribunal did not acknowledge the caution that needs to be implemented in respect of children’s evidence as is often done. The Applicant then took issue with the recitation of the evidence as expressed in the written decision and apparent conflict with the evidence given at the hearing, as disclosed in a transcript of the hearing. The Applicant focused on that part of the hearing where the Tribunal was trying to ascertain the Applicant’s credibility by questioning him about landmarks in the Al Mansour district where he said he had lived all his life. Counsel for the Applicant then sought to analyse the questions by the Tribunal and the answers given by the Applicant in such a way as to create doubt about the Applicant’s understanding of the questions asked of him and doubt about the meaning of his responses. Counsel then proceeded to recite the Applicant’s evidence which Counsel suggested was confirmatory of the Applicant having lived in Baghdad. Counsel proffered other explanations for the answers given and was critical of the nature of the questions being asked and the Tribunal’s rejection of the answers.
All was put to me on the premise that the Court needs to consider the Tribunal’s process of evaluation as such consideration exposed the failure of the Tribunal to consider evidence said to be confirmatory of the Applicant’s residence in Al Mansour. In support of this approach the Applicant relied upon the Full Federal Court’s consideration of these issues in SAAK v Minister for Immigration and Multicultural Affairs[3] where at [34], it stated:
Very often the Refugee Review Tribunal expressly refers to the approach it intends to take to the assessment of evidence. There are many examples of Tribunal decisions which acknowledge the constraints referred to by Prof Hathaway and the authorities concerning the assessment of credit. The practice of recording the general approach which the Tribunal intends to take to the assessment of credit is a valuable one. Thereby, the Tribunal reminds itself of the proper approach to its task; and also provides a reassurance to the reader that the proper approach has been taken. In the end, however, the reasons of the Tribunal should disclose whether the proper approach has in fact been taken.
[2] [1988] FCA 400 per Wilcox J at [81]
[3] (2002) 121FCR 185
The pivotal finding of the Tribunal – that the Applicant lacked credit – resulted in the Tribunal rejecting all of the Applicant’s claims; including his claim to Iraqi nationality, his claim to having lived all his life in the Al Mansour district of Baghdad and the claimed abduction of his father. The Applicant’s attack on the Tribunal’s determination of the question of the Applicant’s credit was the only way, in effect, the Applicant had any hope in this review. In an endeavour to buttress the broad contention that the Tribunal had committed a jurisdictional error, emphasis was placed on matters justifying a different approach by the Tribunal and different findings. One such endeavour was the emphasis placed on the Applicant’s age, and his vulnerability arising out of being an unaccompanied child (the Applicant it should be noted was one month short of his 18th birthday) and someone suffering the anxiety and stress of detention.
In summary, the Applicant contended that the Tribunal’s failure to caution itself in relation to the assessment of the Applicant’s credit, inclusive of its failure to have regard to his status as an unaccompanied minor and to have regard to the relevant guidelines, constituted a jurisdictional error and gave instances characterised as the Tribunal denying the Applicant procedural fairness and/or failing to take into account relevant considerations and/or failing to ask itself the right question, and/or this misconceiving its duty.[4]
[4] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; R v War Pensions Entitlement Appeals Tribunal; ex parte Bolt (1933) 50 CLR 22 7; SZIEW v Minister for Immigration and Citizenship [2008] FCA 5 to 2; MZXFJ v Minister for Immigration & Anor [2006]
In my view, ground one is not sustainable. Those matters which are alleged the Tribunal failed to consider (such as the Applicant’s status and his vulnerability as a child) were fully articulated by the Applicant’s representatives in submissions both pre-and post-hearing. Those submissions were specifically acknowledged by the Tribunal, particularly at [58] where the Tribunal said:
Submissions were made to the effect that I should be mindful of the Applicant’s young age and vulnerability, and were critical of the delegate’s approach which placed weight on inconsistencies in the Applicant’s evidence.[5]
[5] See also [66] where reference was again made to the Applicant's submissions which "referred to the standard scrutiny to which evidence of children ought to be held".
In respect of the Applicant’s contention that, in particular, the questions and responses concerning the Al-Rahman mosque and how a different interpretation would result when considering the vulnerabilities of the Applicant as discussed, was not the sole basis upon which the Tribunal determined the Applicant’s creditworthiness. There were other significant landmarks and features of the Al Mansour district that the Tribunal believed could have readily been identified by the Applicant, having lived all his life in that district; but he failed to do so.
There were also other reasons independent of the question of identifying landmarks given by the Tribunal for the adverse finding on credibility.[6]
[6] see Tribunal decision at [72], [74], [81],[82]
I am of the view that a fair reading of the Tribunal’s decision indicates an awareness of the Applicant’s vulnerability and the caution needed in evaluating evidence from children. The Tribunal made a finding in respect of the Applicant’s credibility that was open to it.
The second ground, asserted that there was a failure by the Tribunal to take into consideration the corroborative medical record that was said to, at least partly, corroborate his claim that he was assaulted when his father was abducted. The medical documentation was not referred to in the decision which the Applicant contends is proof of the fact the Tribunal must have failed to consider it. The Applicant contends that the medical document was significant because it corroborates the Applicant’s claims and should the Tribunal have considered it, it may very well have altered the Tribunal’s conclusion on the Applicant’s credit.
The Applicant referred to Minister for Immigration and Citizenship v SZRKT[7] where Robertson J at [112] said:
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [7] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the Applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference in the Tribunal’s reasons I do not agree.
[7] [2013] FCA 317
In my view, the medical documentation which recorded an assertion by the Applicant that the symptoms he was suffering were caused by an assault, is not corroborative of that assault and has limited probative value, for all that the document does is record what was said by the Applicant to the doctor approximately 2 weeks after the Applicant’s statutory declaration made in support of his application for asylum.
Further, the health record did not go to an issue which was critical to the Tribunal’s reasoning. The decision turned upon the Applicant’s identity and nationality, as was made clear to the Applicant and his representative when the Tribunal at [70] stated:
I am positively satisfied that the Applicant has not provided truthful information about critical aspects of his background, including’s identity and nationality. I do not accept the Applicant’s evidence that he grew up in the Al Mansour district of Baghdad. I am not satisfied he is an Iraqi citizen as he claims. My finding in this regard fundamentally undermines the credibility of the Applicant to the extent that I do not accept any material particular of the claims he has an advanced.
The above finding was so deleterious to the Applicant’s claims that it effectively resulted in the ‘well being poisoned beyond redemption’.[8] In such circumstances, as in the case, the claimed corroborative evidence can be ignored or overlooked without prejudice to the statutory task imposed on the Tribunal.
[8] C. Read Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198A. L. R. 59 at [12] and [49]
This ground is not sustainable.
In respect of the third ground it is alleged the Tribunal was unreasonable and illogical by reason of its rejection, as implausible, the evidence that the Applicant and his family could live undisturbed for 4 years after the abduction of the Applicant’s father, as claimed, before receiving the threatening note; that those people threatening the Applicant would wait for the Applicant to come into adulthood before seeking him out, as suggested by the Applicant; and that the Applicant’s mother and sister would have continued to live in their home after the father’s disappearance, but fled upon receiving “one unattributed threatening note”,
The Applicant was critical of the Tribunal rejecting “every material particular of the Applicant’s claims, including that his father was a school principal and Ba’ath party member.”[9] The conclusion was reached without reference to country information that indicated Shi’a militias were active in Baghdad and targeted Sunni Muslims; particularly where they were perceived to have supported the Ba’athist regime.
[9] Tribunal's decision at [84]
It was said by the Applicant that the conclusion reached in [84] was illogical and unreasonable having regard to the Tribunal’s earlier findings in [81] and at [82]. Those paragraphs stated.
81. I have a further basis, to conclude that the Applicant is not a credible witness and has not given the Tribunal a truthful account of his circumstances. I find elements of his claims to be implausible. I emphasise, however, that my assessment in this regard is not in the alternative to my conclusion that he is not an Iraqi as claimed, but rather provides a further basis for me to reject all of the Applicant’s evidence.
82. I do not accept it to be plausible that the Applicant and his family would live undisturbed for four years before receiving a threatening note. I do not accept the Applicant’s explanation that those who threatened him had waited for him to come into adulthood before proceeding to threaten him, in the meantime, declining to threaten his mother. I also do not accept that the Applicant and his mother and sister would have continue to reside in the home for four years after their husband and father was violently abducted and disappeared from that home, yet would flee upon receiving one unattributed threatening note. The concerns I have about these elements of the Applicant’s claim are sufficient of themselves to lead me to reject each and every material particular of his claim to hold a well-founded fear of persecution in Iraq, or to have substantial grounds for believing that there is a real risk that he would suffer serious harm if you return to a Iraq.
It was said that the findings in [82] could not reasonably or logically lead to a rejection of each and every material particular of the Applicant’s claims. The Applicant contended that the Tribunal was required to consider the Applicant’s discrete claims, such as the claim concerning the Applicant’s father being a school teacher and whether that occupation was targeted as claimed; particularly as this claim was consistent with country information before the Tribunal.
The Applicant’s assertion that the Tribunal failed to make specific reference to country information is not correct. The relevant country information was referred to in the Applicant’s written submissions which were considered by the Tribunal before its decision. At [60] the Tribunal specifically had regard to the information. However, the weight to be attributed to that information was a matter for the Tribunal. It was acknowledged that the country information suggested that Shi’a militias were active in Baghdad and were targeting Sunnis, particularly where they were perceived to have supported the Ba’athist regime. Applying that information the Tribunal, logically, in my view, found that the claim that the Applicant and his family had lived undisturbed for four years in Al Mansour following the abduction of the father is, in fact, supportive of the Tribunal’s conclusions and is logical.
For a decision to be “illogical” or suffer from “irrationality” so as to constitute jurisdictional error, the decision that the Tribunal came to must be one which no rational or logical Tribunal could arrive at on the same evidence. In Minister for Immigration and Citizenship v SZMDS & Anor[10] Crennan and Bell JJ held that the notion of illogicality must be interpreted strictly. Their Honours stated:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact. If it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court, should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here as an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[10] (2010) 240 CLR 611
Clearly, in my view, the Tribunal’s reasoning was not in any sense “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense outlined in SZMDS.
This ground is not sustainable.
The final ground contends the Tribunal imposed an onus of proof on the Applicant by requiring him to provide independent corroboration of his identity and citizenship. It is well settled that there is no onus of proof generally in administrative matters.[11]
[11] Abebe v Commonwealth of Australia [1989] HCA 14
The alleged offending paragraph in the decision is [75] where the Tribunal stated:
Furthermore, having raised the gravity of my concerns with the Applicant at hearing, I do not accept that it is plausible that the Applicant, with the assistance of his representatives, is unable to provide any form of documentary evidence, in respect of himself, to corroborate any aspect of his life in Baghdad. While it may be possible that the people smuggler took the Applicant’s belongings, I do not accept that the Applicant would be unable to obtain any documentary record of his life in Baghdad, given the concern I expressed at the hearing as to his identity and citizenship and my willingness to afford him sufficient time to do so. In this regard, I note the Applicant has claimed to have been born in central Baghdad and to have been educated and to have worked there. It is not plausible in my view that the Applicant would be unable to produce any form of corroborative documentation relating to these different facets of his life, given the gravity of the finding I had clearly foreshadowed I may make. I explained at the hearing that I would be prepared to afford time to the Applicant to obtain information from Iraq in light of my concerns.
The Applicant referred to the fact that he was able to produce his mother’s identity card confirming her Iraqi citizenship. The Tribunal, however, gave little weight to this as being probative evidence of the Applicant’s citizenship. That document did not assuage the Tribunal’s general concern about the lack of “corroborative documentary evidence.”
It is for the Applicant to prosecute his claims which, to be successful, must satisfy the Minister that he is a person to whom Australia has protection obligations under the Convention. During the hearing the Tribunal alerted the Applicant and his representative to the Tribunal’s concern about the Applicant’s nationality and citizenship, which primarily arose out of the incapacity of the Applicant to identity significant features in the area of Al Mansour where he claimed to have lived all his life.
The Tribunal, in my view, went to some length to explain its concerns about the Applicant’s nationality and citizenship, and why he had an adverse response to a failure to produce adequate documentation to corroborate his claims of citizenship and nationality. The Tribunal articulated its reason, in summary, as being the high likelihood that the Applicant could have arranged the provision of such corroborative documentation through his contacts in Al Mansour or through his uncle in Lebanon.
His Honour Callinan J address this issue in Minister for Immigration and Multicultural Affairs v Eshetu[12] where he said at [184]:
184. It was accepted by the respondent that, in accordance with the decision of this court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, the weight to be accorded to a relevant consideration by an administrative decision-maker is generally a question for the decision-maker and not the Court: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. Although absence of collaboration did loom large in the Tribunal’s decision, it was not the only basis upon which the Tribunal proceeded. However, even if it were, the weight to be accorded to that factor was a matter for the Tribunal and not for the Federal court.
[12] (1999) 197 CLR at 611
In Warnakulasurla v Minister for Immigration and Multicultural Affairs[13] Finkelstein J, when considering the issue of corroborative evidence, stated:
The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact, based on the evidence that is before it. In the Guo, in the majority judgment at 570 it was said that “the Tribunal (is) entitled to weigh the material before it, and make findings before it engaged in any consideration of whether or not (the Applicant’s) fear of persecution on a convention ground was well founded.” See also Wu Shan Liang at 293 per Kirby J. This must admit of the possibility that the Tribunal will not accept the accuracy of certain “facts” unless they are corroborated in some way. The acceptance or rejection of a “facts” is a matter for the Tribunal, and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence would not be accepted by it, unless it is corroborated. Some “facts” maybe so implausible that they would not be accepted. An Applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence is corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected, unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.[14]
[13] [1998] FCA 336
[14] This passage was approved by the Full Court of the Federal Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123.
A requirement of a Tribunal for corroborative evidence in circumstances where the Tribunal would otherwise not accept a claim, as in this case, is not an improper imposition of an onus of proof.
Accordingly, this ground is not sustainable.
Conclusion
For the above reasons, where each ground relied upon is not sustainable, there is no merit in the Applicant’s substantive application. Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice to extend the time for the filing of the application pursuant to s.477(2) of the Act.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 23 May 2014
FMCA 1465
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