Sherpa & Anor v Minister for Immigration & Anor

[2020] FCCA 2988

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERPA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2988

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of independent skilled visas – second applicant found to have used multiple identities – whether the Tribunal erred by failing to verify identity documentation considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.362A

Migration Legislation Amendment (2017 Measures No.2) Regulations 2017 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration v FOE17 [2020] FCAFC 73

Minister for Immigration v Lay Lat (2006) 151 FCR 214

Minister for Immigration v Le (2007) 164 FCR 151

Minister for Immigration v SZJSS (2010) 243 CLR 164

Minister for Immigration v SZIAI (2009) 83 ALJR 1123

Minister for Immigration v SZMDS [2010] HCA 16

Minister for Immigration v SZRTF [2013] FCA 1377

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NAHI v Minister for Immigration [2004] FCAFC 10

Saeed v Minister for Immigration [2010] HCA 23

SZMJM v Minister for Immigration  [2010] FCA 309

First Applicant: DOLMA SHERPA

Second Applicant: SANAD KHADKA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2759 of 2017

Judgment of: Judge Driver

Hearing date: 4 November 2020

Delivered at: Sydney

Delivered on: 30 November 2020

REPRESENTATION

Solicitors for the Applicants: Mr C Levingston of Christopher Levingston & Associates

Solicitors for the Respondents: Ms P Durham of Sparke Helmore

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 4 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2759 of 2017

DOLMA SHERPA

First Applicant

SANAD KGADKA

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants skilled independent permanent visas. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The first applicant (Ms Sherpa), a citizen of Nepal, applied for the visa on 4 May 2015.[1]  The second applicant, the applicant’s husband, Mr Khadka, was included as a member of Ms Sherpa’s family unit.   

   [1] Court Book (CB) 1-12

4. At the time of the delegate’s decision, clause 189.215(3) of the Migration Regulations 1994 (Cth) (Regulations) required that members of the primary applicant for the visa’s family unit meet the requirements of a number of Public Interest Criteria (PIC) including PIC4020(2A). PIC4020(2A) is commonly referred to as the identity criterion.

5. By letter dated 2 December 2015, the Minister’s Department invited Ms Sherpa to comment on information that Mr Khadka may have previously entered Australia assuming the identity of Saroj Khadka (date of birth: 8 June 1987).[2]  The letter provided the following information:

   a)the incoming passenger card completed by Saroj Khadka on 12 February 2011, and the incoming passenger card completed by Mr Khadka on 12 June 2014, were compared.  Similarities existed between the two passenger cards, including that the intended address and emergency contacts on both cards were the same and the handwriting was very similar;

   b)a departmental facial image comparison specialist compared images of Mr Khadka and Saroj Khadka, and was of the opinion that there were indicators that the persons depicted in both images were the same person;

   c)the Department’s Biometric Acquisition Matching System (BAMS) returned a match between an image of Saroj Khadka and a BAMS image of Mr Khadka; and

   d)based on the above, Mr Khadka and Saroj Khadka may be the same person, and therefore the delegate was not satisfied as to Mr Khadka’s identity and he may not satisfy PIC4020(2A).

   [2] CB 90-94

6. In response, Mr Khadka submitted, among other things, that Saroj Khadka was his older brother who grew up with his grandparents in a different city since his birth.[3]

   [3] CB 105

7. By email dated 29 December 2015,[4] the applicants provided the following documents in response to the delegate’s invitation to comment:

   [4] CB 95

   a)an employment reference dated 27 December 2015[5] from Tours and Treks Pty Ltd, a business operating in Nepal. The reference indicated that Mr Khadka was employed by the business from November 2010 to January 2012;

   [5] CB 96

   b)a Birth Registration Certificate[6] purportedly issued by the Nepalese Government. The Birth Registration Certificate identified Saroj Khadka as the grandson of Mr Jit Bahadur Khadka and the son of Mr Ram Kumar Khadka and Mrs Sarada Khadka. The certificate lists Saroj Khadka’s date of birth as 9 June 1987;

   [6] CB 97

   c)a Nepalese citizenship certificate[7] purportedly issued by the Nepalese Government to Saroj Khadka. The certificate lists Saroj Khadka’s date of birth as 9 June 1987 and identifies Mr Ram Kumar Khadka as his father;

   [7] CB 98

   d)a Birth Registration Certificate[8] purportedly issued by the Nepalese Government. The Birth Registration Certificate identified Mr Khadka as the grandson of Mr Jit Bahadur Khadka and the son of Mr Ram Kumar Khadka and Mrs Sarada Khadka. The certificate lists Mr Khadka’s date of birth as 8 September 1988;

   [8] CB 99

   e)a Nepalese citizenship certificate[9] purportedly issued by the Nepalese Government to Mr Khadka. The certificate lists Mr Khadka’s date of birth as 8 September 1988, identifies Mr Ram Kumar Khadka as his father and Mrs Sarada Khadka as his mother;

   [9] CB 100

   f)a relationship certificate[10] purportedly issued by the Nepalese Government. The certificate identified Saroj Khadka as Mr Khadka’s elder brother and Mr Ram Kumar Khadka as his father and Mrs Sarada Khadka as his mother. Photographs of Mr Khadka, Saroj Khadka, Mr Ram Kumar Khadka and Mrs Sarada were included on the certificate;

   [10] CB 101-102

   g)an Earthquake Victim Family Identity Card[11] purportedly issued by Shankarapur Municipality identifying Mr Khadka’s family as earthquake evacuation victims;

   [11] CB 103-104

   h)a statement from Mr Khadka[12] addressing the information on the incoming passenger cards and the facial image comparison report.  To summarise, in his statement Mr Khadka attests as follows:

   [12] CB 105-106

   i)Saroj Khadka is his elder brother;

   ii)Saroj Khadka was raised by his grandparents;

   iii)he does not have a close relationship with Saroj Khadka;

   iv)he is aware that Saroj Khadka had travelled to Australia previously;

   v)he had provided Ms Sherpa’s contact details to Saroj Khadka prior to his travel to Australia;

   vi)their handwriting is similar because they were taught by their father and indeed most of their family members have similar handwriting;

   vii)Saroj Khadka is 13 months older than him;

   viii)the age difference explains the similarity in their facial features and he has often been mistaken for Saroj Khadka; and

   ix)Saroj Khadka’s date of birth in his passport differed from the date of birth listed in the Birth Registration Certificate and certificate of citizenship. Mr Khadka opined that the discrepancy may be due to a translation error.

8. On 16 May 2016, the delegate refused to grant the applicants the visa.[13]  The delegate found that Mr Khadka did not meet PIC 4020(2A) and therefore did not satisfy clause 189.312 of Schedule 2 to the Regulations.  The delegate also found that Ms Sherpa failed to satisfy clause 189.215 on the basis that Mr Khadka did not satisfy the Minister as to his identity. 

   [13] CB 112-125

9. On 23 May 2016, the applicants applied to the Tribunal for review of the delegate’s decision.[14] As noted above, on 17 August 2017, the Tribunal affirmed the decision under review.[15]

   [14] CB 126-127

   [15] CB 269-279

Tribunal decision

1. The Tribunal identified that a request was made under s.362A of the Migration Act 1958 (Cth) (Migration Act) for access to documents.[16]  It recorded that the folios the subject of a non-disclosure certificate were released with redactions to some names of departmental officers.  The remainder of the file was released in full, including the certificate itself.

   [16] CB 270, [5]

2. The Tribunal considered whether Mr Khadka met PIC4020(2A), which required that he satisfy the Tribunal as to his identity.  The Tribunal noted that the information before it indicated that Mr Khadka may have previously entered Australia under the identity of Saroj Khadka.[17] This information included:

   a)information provided by Queensland Police that Mr Khadka attended Queensland Transport at Bundall on 16 July 2014 to apply for a driver’s licence.[18]  Queensland Transport alerted the police to concerns when an error in relation to facial recognition arose and it appeared that a person of similar appearance had held a Queensland driver’s licence under the name Saroj Khadka with date of birth of 8 June 1987;

   b)the facial image comparison report;[19]

   c)the BAMS match;[20] and

   d)the incoming passenger cards.[21]

   [17] CB 271, [9]

   [18] CB 271, [10]

   [19] CB 271, [11]

   [20] CB 271, [12]

   [21] CB 271-272, [13]

3. The Tribunal identified the explanation provided to the delegate, namely that Saroj Khadka was Mr Khadka’s older brother, and the number of documents provided as evidence that Mr Khadka had a brother named Saroj Khadka.[22]  The Tribunal also considered the various submissions advanced by the applicants’ representative.  The Tribunal found that it was not bound by the rules of evidence and did not consider that the identity of the facial image comparison specialist was relevant. It was satisfied that the specialist was suitably qualified to provide an opinion.[23] 

   [22] CB 272, [14]

   [23] CB 272, [16]

4. The Tribunal recorded that it was asked to examine a copy of the Nepalese citizenship certificate of Saroj Khadka because it included thumbprint images.[24]  The Tribunal was not prepared to accept that Saroj Khadka and Mr Khadka were two separate individuals based on the thumbprint analysis undertaken by the applicants’ representative.  Nor was the Tribunal willing to make the fingerprint assessment itself based on an unclear and poor photocopy.  The Tribunal also had concerns as to the provenance of the certificate noting Mr Khadka’s claim that the documents were obtained from his parents, but also that the earthquake in Nepal had destroyed his home entirely in 2015. It was unclear to the Tribunal why the documents for Saroj Khadka, which were all issued prior to 2015, were not destroyed. The Tribunal also identified that Mr Khadka’s claim that his father and grandfather had copies of the documents for safekeeping was inconsistent with the stamp by the Nepal Notary Public which suggested they had sighted the original document. The Tribunal found the applicants continually adjusted their claims to address the issues raised.

   [24] CB 273, [18]

5. Further, the Tribunal had serious doubts as to Mr Khadka’s actual date of birth, which according to the passport and other documentation provided, should have been 8 September 1988.  The Tribunal noted that Mr Khadka provided this date of birth when attending Queensland Police, but gave his age as 29.  Mr Khadka also repeatedly stated at the hearing that he was 29 years of age. The Tribunal identified that Mr Khadka would have been 28 years old if his birth date was 8 September 1988, and that it was Saroj Khadka who would have been 29 on the basis of the date of birth given for him.[25] 

   [25] CB 273-274, [19]

6. Further, the use of the Rosewood Avenue address as the intended address of Saroj Khadka on his incoming passenger card was of concern to the Tribunal.[26]  The information from Queensland Police indicated that Saroj Khadka used this address for a licence application in September 2012 and given that this was some 1.5 years after his second entry to Australia, the Tribunal considered that this would seem to indicate that he was and had been living at this address.[27]  The Tribunal considered Mr Khadka’s explanation for this but found there was no plausible reason that a person would use this address over this length of time if he was not living there.[28] 

   [26] CB 274, [20]

   [27] CB 274, [21]

   [28] CB 274-275, [22]

7. The Tribunal was also concerned by the fact that Mr Khadka did not include Saroj Khadka as a sibling on his Form 80 submitted with the visa application.[29]  It had doubts about his explanation that he took the form “lightly”.  It also noted that Mr Khadka had provided an inconsistent explanation to the Minister’s Department and the Tribunal as to why he did not include details of his brother.[30]

   [29] CB 275, [23]

   [30] CB 275, [24]

8. The Tribunal had considerable concerns about the evidence given by Mr Khadka’s mother at the hearing given the differences between her evidence about Saroj Khadka and noting she may attempt to assist her son.[31] The Tribunal considered the evidence about Mr Khadka having a different blood type to that recorded on the Nepalese driver’s licence for Saroj Khadka but found there was nothing to confirm what evidence was provided on blood type to obtain the Nepalese driver’s licence. The Tribunal again identified concerns with how the document was obtained.[32]

   [31] CB 275-276, [25]

   [32] CB 276, [26]

9. The Tribunal did not draw any conclusions from the handwriting on the incoming passenger cards as to whether the person entering on both occasions was the same person, because no expert analysis had been undertaken.[33]  The Tribunal had regard to the reference letter submitted as evidence of Mr Khadka’s employment from November 2010 to January 2012, but was not persuaded that the letter confirmed that he was in Nepal during that time.[34] 

   [33] CB 276-277, [28]

   [34] CB 277, [29]

10. The Tribunal recorded that it was asked to request verification checks of Mr Khadka’s identity documentation.[35]  It identified that its focus was not on the falsity of the documents but whether the Tribunal could be satisfied as Mr Khadka’s identity. It did not consider that confirmation or otherwise that the documents were genuinely issued would assist its consideration of this issue.  It also noted that given the ease with which fraudulent documents could be obtained in Nepal, a verification check would not outweigh the Tribunal’s concerns as to Mr Khadka’s identity. In particular, the Tribunal seriously doubted the birth date provided for Mr Khadka was correct given he was unable to tell the Tribunal his correct age when asked.

    [35] CB 277, [31]

11. The Tribunal considered all of the evidence in accepting that there was material to suggest that Saroj Khadka and Mr Khadka were indeed two separate people, but that there was also evidence to suggest that they were the same person.[36]  The Tribunal found that the information before it was equivocal and it remained concerned that Mr Khadka and Saroj Khadka were the same person.[37]  The Tribunal was not satisfied that Mr Khadka was Sanad Khadka with the date of birth 8 September 1998.      

    [36] CB 277, [32]

    [37] CB 278, [33]

12. Accordingly, the Tribunal found that Mr Khadka did not meet PIC4020(2A) which meant that Ms Sherpa did not satisfy clause 189.215(3) of Schedule 2 to the Regulations.[38]

    [38] CB 278, [34]

The current proceedings

1. These proceedings began with a show cause application filed on 4 September 2017.  There are three grounds in that application on which the applicant continues to rely:

   1.The Tribunal fell into jurisdictional error by refusing the application made by the Second Applicant to have his passport and other documents verified so as to establish his identity. In doing so the Tribunal showed a disposition to ignore exculpatory evidence to the detriment of the Applicant and in doing so acted unreasonably. (Paragraph 31)

   2.The Tribunal fell into jurisdictional error by refusing the application by the Second Applicant to verify his identity by resort to a thumbprint available on an official document as well as evidence to the effect that the Second Applicants blood group was different to the identity of Saroj Khadka in circumstances which demonstrated a tendency to ignore exculpatory evidence in favour of a case theory to the effect that the Second Applicant and Saroj Khadka were one and the same person.(Paragraph 28)

   3.The Tribunal was at all times bound to act fairly and in failing to give weight to exculpatory evidence or enquire upon the application of the Second Respondent was, having regard to the issue before the tribunal was unreasonable and a breach of procedural fairness.

2. The only evidence I have before me is the court book filed on 23 October 2017. 

3. This matter was originally allocated to the docket of Judge Barnes.  However, at a callover on 13 March 2019 her Honour transferred the matter to my docket. 

4. Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 4 November 2020. 

Consideration

1. As a preliminary issue, I accept the Minister’s submission that, contrary to the applicants’ submissions at [5] and [33], the Tribunal was correct to refer to clause 189.215(3) of the Regulations as the relevant criteria under consideration. The amendment to the criteria for the visa made by the Migration Legislation Amendment (2017 Measures No.2) Regulations 2017 (Cth) only applies to an application made on or after 1 July 2017, in accordance with cl 6301 in Schedule 13 of the Regulations. As the application was made on 4 May 2015, the amendments do not apply.

2. The applicants accept that both of them needed to meet the requirements of PIC 4020 in order for them to obtain the visas sought.  However, the applicants find fault with the Tribunal’s assessment of its satisfaction as to their meeting the requirements of the criterion.  In particular, the applicants are concerned about the Tribunal’s expressed inability to satisfy itself by reference to official documents provided by the applicants, and the Tribunal’s reliance on the inability of the Mr Khadka to tell the Tribunal how old he was while excluding exculpatory and corroborative evidence.  The applicants repeat the same submissions in relation to the proffered thumb print evidence and blood group evidence.  The manner in which the Tribunal dealt with the evidence is said to have been procedurally unfair, amounting to jurisdictional error. 

3. While the applicants’ case is arguable, I am not persuaded by it.  I agree with and adopt the Minister’s submissions on the grounds of review advanced.

Ground 1

1. Ground 1 contends that the Tribunal acted unreasonably in refusing to have Mr Khadka’s passport and other documents verified. Contrary to the applicants’ submissions, the Tribunal provided a logical basis for not verifying the documents, such that its decision was not unreasonable.

2. It is well established that it is for the applicant to provide the Tribunal whatever evidence or argument he wishes to advance in support of his claims.[39] The Tribunal has no duty to investigate, unless there is an obvious inquiry about a critical fact the existence of which was easily ascertained.[40] Such circumstances have been held to be rare and exceptional.[41] Further, the fact that it might have been reasonable to make an inquiry does not mean that a failure to do so amounts to jurisdictional error. An applicant must demonstrate that the failure to make the inquiry was so unreasonable that the Tribunal’s decision is infected by jurisdictional error.[42] If an inquiry is not critical to the review and could not have resulted in a different outcome, then there will be no jurisdictional error.[43]

   [39] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]

   [40] Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [25]

   [41] Minister for Immigration v Le (2007) 164 FCR 151 at [60]

   [42] SZMJM v Minister for Immigration  [2010] FCA 309 at [30]

   [43] Minister for Immigration v SZRTF [2013] FCA 1377 at [40]

1. The Tribunal referred to Mr Khadka’s request to verify his documents in its decision record at [31]. The Tribunal did not consider that confirmation or otherwise that the documents were genuinely issued would assist its consideration of the matter. Given the ease with which fraudulent documents could be obtained in Nepal, the Tribunal found that even where verification was obtained, this alone would not outweigh the Tribunal’s concerns as to Mr Khadka’s true identity. The country information referred to by the Tribunal supported an inference that even if the documents were found to be genuine they may have been fraudulently obtained.

2. The Tribunal had identified various concerns in its decision that indicated that Mr Khadka and Saroj Khadka were the same person, including why Mr Khadka had not included Saroj Khadka as a sibling on his Form 80, continually adjusting his evidence in response to the Tribunal’s concerns, the facial image comparison and implausible explanation for using the Rosewood Avenue address.[44] Although the Tribunal makes particular reference to its concern that Mr Khadka was unable to provide the correct age for his claimed date of birth at [31], the language of the Tribunal’s decision does not indicate that this was the only concern relied on by the Tribunal for why verification would not outweigh its concerns. When read as a whole, it is evident that the Tribunal continued to rely on the various other concerns identified throughout its decision. The concerns raised by the Tribunal provided a logical basis for its finding that verification would not outweigh its concerns. It cannot be said to be legally unreasonable in those circumstances that the Tribunal, even accepting the documents were genuine, would not be satisfied that they outweighed the Tribunal’s concerns in light of the remaining evidence before it.  Nor could any inquiry about the genuineness of the documents be said to be about a “critical fact” in circumstances where even if the documents were genuine, it would not have changed the outcome.[45]

   [44] CB 273-275, [18], [20]-[24]

   [45] Minister for Immigration v FOE17 [2020] FCAFC 73 at [68]

3. Furthermore, there is no error in the Tribunal putting particular weight on its concern that Mr Khadka was unable to provide the correct age for his claimed date of birth. The weight to be afforded to the evidence was an issue for the Tribunal as part of its fact-finding function.[46] It was open for the Tribunal to find that it would expect Mr Khadka to have been able to tell the Tribunal his correct age when asked.[47] The Tribunal considered the explanation provided for the mistake but did not accept it.[48] While another decision maker may have adopted different reasoning, there is nevertheless a logical basis for the Tribunal’s findings based on probative evidence such that its decision cannot be considered illogical or unreasonable.[49]

   [46] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

   [47] CB 277, [31]

   [48] CB 273-274, [19]

   [49] Minister for Immigration v SZMDS [2010] HCA 16 at [131]

4. Contrary to the applicants’ submissions, it is evident that the Tribunal did weigh up the evidence before it. The Tribunal accepted that there were factors in support of Mr Khadka’s assertion that Saroj Khadka was his brother but considered there was also evidence that suggested they were the same person.[50] Overall, the Tribunal was not satisfied of Mr Khadka’s identity. The concerns raised by the Tribunal provided a logical basis for this decision. The applicants’ assertion that the Tribunal ignored relevant evidence and prejudged the evidentiary weight to be given to the evidence cannot be sustained.

   [50] CB 277-278, [32]-[33]

5. Accordingly, the Tribunal’s finding that verification of the documents would not have affected the outcome of its decision was reasonable. As the verification was not critical to the Tribunal’s decision, there was no duty for the Tribunal to obtain verification. The applicants have otherwise failed to establish that the Tribunal “eliminated” what is said to be exculpatory or corroborative evidence or favoured adverse inferences arising from multiple sources in any manner that could be said to be impermissible or amount to jurisdictional error.

Ground 2 

1. This ground repeats the same contention as Ground 1, that it was unreasonable for the Tribunal not to inquire, in relation to the thumbprint and blood type evidence. Once again, the Tribunal provided a logical basis for finding that any inquiry was not critical to its review.

2. The Tribunal recorded that it was asked to examine the copy of the Nepalese citizenship certificate of Saroj Khadka because it included thumbprint images.[51]  The Tribunal was not willing to undertake any thumbprint analysis itself, particularly given the quality of the documents and its concerns as to their provenance. These concerns were logically probative to the value and weight that would be attributable to any thumbprint analysis and the Tribunal’s refusal to rely on its own (or the applicants’ representatives) assessment of the thumbprint did not lack an evident and intelligible basis. Further, for these reasons, the thumbprint analysis was not an obvious inquiry about a critical fact the existence of which was easily ascertained and there is no error in the Tribunal determining not to make the inquiry.

   [51] CB 273, [18]

3. In relation to the blood type evidence, the Tribunal found that there was nothing to confirm what evidence would have been presented on blood type to obtain Saroj Khadka’s Nepalese licence.[52] The Tribunal also had concerns about the provenance of the licence. The Tribunal did not express any doubt about the results of the blood test undertaken by Mr Khadka in Australia which showed he was A+. However, it was logical for the Tribunal to find that this evidence did not support a conclusion that Mr Khadka was a different person to Saroj Khadka in circumstances where it had concerns about the reliability of the evidence in the licence that Saroj Khadka’s blood type was AB+. The applicants have not identified an obvious inquiry about a critical fact that could have resolved the Tribunal’s concerns and resulted in a different decision or that the Tribunal’s conclusions in respect of this evidence were otherwise legally unreasonable.

   [52] CB 276, [26]

4. There is no jurisdictional error in the Tribunal determining not to verify Mr Khadka’s thumbprint or blood type.

5. Insofar as the applicants’ submissions refer to the issue of “whether the ‘brother’ actually exists” remaining “unresolved”, the Tribunal was not required to determine whether Mr Khadka’s brother existed. The issue for the Tribunal, as it identified at [31], was whether it was satisfied as to Mr Khadka’s identity. The applicants have not identified any sound basis upon which it could be said that the Tribunal’s failure to be satisfied as to Mr Khadka’s identity was not reasonably open to it.

Ground 3

1. The applicants contend that the Tribunal was required to act fairly, and that in failing to give weight to exculpatory evidence and enquire upon the application, the Tribunal was unreasonable and breached its procedural fairness obligations. 

2. Insofar as this ground goes beyond the complaint in the first two grounds, it essentially cavils with the weight that the Tribunal gave to particular items of evidence. As outlined above, the Tribunal provided a logical basis for the concerns it raised in relation to the evidence provided by Mr Khadka. It is well established that matters of weight are within the exclusive province of the Tribunal.[53]  No legal unreasonableness on the part of the Tribunal has been clearly articulated much less established by the applicants. 

   [53] Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33]

3. To the extent that the applicants contends that the Tribunal did not afford them procedural fairness, the applicants have not particularised how the Tribunal breached Division 5 of Part 5 of the Migration Act, which provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.[54]

   [54] Minister for Immigration v Lay Lat (2006) 151 FCR 214 at [66]; Saeed v Minister for Immigration [2010] HCA 23

Conclusion

1. The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 30 November 2020