SZGGD v Minister for Immigration
[2009] FMCA 832
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 832 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGGD”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425, 430 |
| Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 NAAH v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 354 NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme [2003] HCA 56 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 |
| Applicant: | SZGGD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3449 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 21 July 2009 |
| Date of Last Submission: | 14 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| The Applicant: | Applicant appeared in person with the assistance of a Tamil interpreter |
| Counsel for the Respondents: | Ms L Weston (solicitor) |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 31 December 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3449 of 2008
| SZGGD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant arrived in Australia on 27 September 2004 and applied to the Department of Immigration for a Protection (Class XA) visa on 8 November 2004. A delegate of the first respondent refused to grant the visa on 13 December 2004. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision and the Tribunal affirmed the delegate’s decision on 24 March 2005.
The applicant sought review of the Tribunal decision in the Federal Magistrates Court, which was dismissed by the Court on 27 April 2006. An appeal to the Federal Court was allowed on 28 August 2006 and the matter was remitted to the Tribunal, differently constituted, to be reconsidered and determined according to law. The second Tribunal affirmed the decision under review on 3 January 2007. The applicant appealed the second Tribunal decision in the Federal Magistrates Court which was dismissed on 26 June 2008. The applicant appealed that decision in the Federal Court and on 21 August 2008, consent orders were made for the matter to be remitted to the Tribunal and determined according to law. It is this third Tribunal decision of Christine Long, number 0805522, made on 4 December 2008 which is under review by this Court.
The applicant is a citizen of India who states that he is Tamil and a Hindu. He lived in Tamil Nadu from 1994 to 2001, Singapore from 2001 to 2003 and Tamil Nadu again from 2003 until he arrived in Australia in 2004. The applicant claims that he has suffered a well-founded fear of persecution resulting from his membership in the Kammavar Naidu community, a “backward community”.
The applicant claims that one of his sisters was killed by her husband, “R”. It is alleged that his father complained to the Chief Minister about this and was killed shortly after in a motorbike accident in Paramukudi in July 2001. When the applicant attempted to report his father’s death to the Police Commissioner, R and his brother were present and the Commissioner refused to take any action. The applicant claims that R and his brother then went to the applicant’s home and attacked his mother and sister. The applicant complained to the Police Commissioner and R was arrested. However, his mother died of head injuries in August 2001 as a result of the attacks and when the applicant returned from Singapore to India in 2003, his sisters were missing and the house was destroyed.
The applicant further claims that R sought to target him and he hid with his uncle in the Tanjore District. His uncle arranged a visa for him to travel to Australia.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors and is marked Exhibit “A”. This document was read into evidence.
The application filed on 31 December 2008 contains three grounds of review:
1. The Tribunal denied the my procedural fairness by reaching adverse conclusion that my claims were implausible and there is no real chance that the I will suffer persecution form my sister’s husband’s family and their supporters, being conclusions that were not obviously open on the known material, without giving me the opportunity to be heard in respect of those matters.
2. The Tribunal exceeded is jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine requirements with the Migration Act 1958.
3. The member of the Tribunal in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the I was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
a) it failed to properly apply the consideration that for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that my claims are plausible, which was the case here.
On the first court date, the applicant indicated that he wished to participate in the Court-sponsored Legal Advice Scheme. This request was conveyed to the Court Registry for the allocation of a panel adviser. The Court file indicates that the applicant attended a conference with the adviser and received advice. The applicant was also granted leave to file an amended application but failed to avail himself of this opportunity.
However, on 24 June 2009, the applicant filed written submissions which contained four new grounds of review:
a)that the Tribunal failed to take into account relevant considerations or integers of the applicant’s claims;
b)that the Tribunal “did not consider the applicant who had been under immense pressure from his sister’s husband’s family and their supporters”;
c)that the Tribunal breached s.430 of the Migration Act 1958 (Cth) (“the Act”) when it made no finding as to the extent or nature of persecution suffered by the applicant when it found (without giving reasons) that any persecution suffered was not for a Convention reason; and
d)that the Tribunal failed to note that the applicant satisfied the four key elements of being a refugee as defined by the Convention and which it identified.
The Tribunal decision
The Tribunal accepted that the applicant is a citizen of India and that he is a member of the Kammavar Naidu ethnic caste (CB 224 at [49]-[50]). It also accepted that difficulties arose from the applicant’s sister’s marriage and that his parents and a sister had died recently (CB 224 at [51]). The Tribunal did not accept that the applicant had a well-founded fear of persecution in India based on its finding that he was not a witness of truth (CB 224 at [50]) for six principal reasons:
a)The Tribunal found that the applicant’s sister had committed suicide based on the documents he presented. However, it considered that there was no plausible evidence before it which supported the suggestion that she had been murdered (CB 224 at [51]).
b)As the Tribunal did not accept that the applicant’s sister was murdered, it correspondingly did not accept that his father or his family had been harmed by R (the applicant’s brother-in-law) (CB 225 at [51]). The Tribunal considered that the applicant had not provided a plausible explanation for his belief that his father had been murdered.
c)The Tribunal considered that there was no plausible evidence before it to suggest that the applicant’s mother had been beaten or injured as claimed, or that she had died for the reason claimed (CB 225 at [55]). The Tribunal noted that the death certificate provided by the applicant did not explain his mother’s cause of death. It also considered that if his mother had been beaten, he would have a better recollection of the date of the alleged beating and her subsequent death.
d)The Tribunal considered that it was inconsistent with the applicant’s claims that he returned to India in 2003 and remained there for a year before travelling to Australia (CB 225 at [53]). However, it did not accept that he was attacked when he returned to India or that his home was damaged. It also did not accept that the applicant moved frequently when he returned to India in 2003 and considered that he had not provided any explanation in respect of these movements (CB 225 at [53]).
e)The Tribunal did not consider that it was consistent with the applicant’s claims that he was of interest to the Indian authorities but was able to obtain a visa to Australia and leave India without any difficulties (CB 225 at [54]).
f)The Tribunal considered the document from the Tamilnadu Kamma Naidu Community Group provided by the applicant by view of its findings regarding the applicant’s credibility gave the document no weight (CB 226 at [55]).
Consideration
The applicant filed a document identified as “written submissions” which in effect pled four new grounds of review as referred to above. However, the document does not refer to the original grounds filed in the application nor does it contain any argument in support of the seven grounds ultimately pleaded. When invited to make oral submissions, the applicant indicated to the Court that he intended to rely upon his original application and written submissions and did not wish to make any further statements. Ms Weston, appearing for the first respondent, filed detailed written submissions addressing all the grounds in the original application and the four additional grounds raised in the document filed by the applicant on 24 June 2009.
An issue common to a number of grounds pleaded in the original application and in the written submissions which I am treating as an amendment and additional grounds concerns an impermissible merits review. As this issue is repeated although not directly pleaded I will address it as a preliminary issue common to a number of the grounds. Clearly a merits review is not available in this Court as part of a judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the original visa application and seeks for the reviewing body to consider all of the material previously placed before the decision maker as well as any new evidence. A body undertaking a merits review is unfettered by any earlier decision or reasons of the decision maker for the earlier decision and a merits review determines the correct preferable decision in all the circumstances. There are a number of authorities commonly referred to indicating that this Court cannot engage in a merits review, namely SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192; NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554; NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354.
Ground one of the application
In this ground, the applicant alleges that the Tribunal denied him procedural fairness by concluding that his claim was implausible and that he did not face a well-founded fear of persecution in India. Further, that he was not given an opportunity to be heard in respect of these matters. Although not pleaded, it is presumably an allegation that the Tribunal failed to provide procedural fairness with regard to s.425 of the Act.
Ms Weston contends in her written submissions that the applicant would have been on notice that his credibility was in question through the following:
a)The two previous Tribunal hearings;
b)A s.424A letter sent by the second Tribunal;
c)The decisions of the first and second Tribunal; and
d)Particular aspects of his story which gave the Tribunal member concern.
The determinative finding of the Tribunal was that the applicant was not a credible witness, which led to its comprehensive rejection of all his claims.
Ms Weston submits that the applicant could not have doubted that the entirety of his claims were in issue and relies on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at [47] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated:
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The operation of SZBEL and the procedural fairness obligation pursuant to s.425 of the Act state that an applicant is entitled to know the issue or issues which are determinative in the disposition of his/her application for a Protection visa. The applicant is entitled to assume that those issues which were determinative or dispositive of his application before the delegate are the issues that are determinative or dispositive before the Tribunal. If there are other issues which are determinative before the Tribunal, the Tribunal is obliged in meeting its procedural fairness obligations to reveal the issue to the applicant at the hearing. The starting point in considering the issues in relation to the decision under review (s.425(1) of the Act) is to first ascertain with reference to the delegate’s decision (see SZBEL at [35]). In this regard the applicant’s claims before the delegate have not changed before the subsequent tribunals.
The Court does not have the benefit of the transcripts of either of the Tribunal hearings and is limited in its assessment of this matter to the material that appears in the three Tribunal decisions. However, prior to the second Tribunal decision the applicant was forwarded an Invitation to Comment on Information letter dated 13 November 2006 which invites him to comment on part of his evidence and it informs him in that document “this information is relevant because it could lead the Tribunal to question your credibility in relation to your material claims”. The significance of this request must have been apparent to the applicant as he has provided a statutory declaration dated 15 June 2006 in which he has attempted to specifically respond to these issues raised in that request letter. Although this has not been specifically pleaded I support the submission made by Ms Weston that the passage of this matter through three Tribunal hearings and the response to a s.424A letter should have made the applicant acutely aware that the question of his credibility in respect to some of his claims was being questioned by all three Tribunal members and at the time that he appeared before the third Tribunal he would have been aware of these issues. In those circumstances I do not believe that the claim raised in ground one can be sustained and should be dismissed.
Ground two
This ground alleges that the Tribunal should have investigated the applicant’s claims however this ground of review contains no particulars, written or oral submissions indicating what aspect of the applicant’s claims should have investigated. It is acknowledged that the Tribunal has the power to obtain the further information however it is well established that it is under no obligation to carry out the investigation of the applicant’s claims nor is it under a duty to utilise any permissive statutory powers to undertake its own investigations.
The relevant facts pertaining to an application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the fact as it is for the applicant to make out his own case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 per Kirby J at 596. In this matter the applicant had an opportunity to attend hearings before the first and third Tribunal together with the invitation contained in the s.424A letter to furnish additional facts. To the extent that he did the applicant cannot now complain that any other facts were not taken into account or furnish additional facts and ask that they be taken into account.
There is a series of decisions as to whether the Tribunal is obliged to undertake its own investigations into an applicant’s claim. In SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 164 per Finn, Emmett and Bennett JJ their Honours at [8] stated:
8…The fifth ground, relating to s 427 of the Act, seemingly refers to the powers of the Tribunal to make an investigation. It is well accepted this does not give rise as of course to any mandatory obligation: see Re Minister for Immigration and Multicultural Affairs; ex parte Cassim (2000) 175 ALR 209 at [13]…
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] their Honours Gummow and Hayne JJ at [43] stated:
…whilst s 427 of the Act confers power on the Tribunal to obtain a medical report15., the Act does not impose any duty or obligation to do so. Rather, s 42616. provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
I am satisfied that ground two of the application does not reveal any jurisdictional error and should be dismissed.
Ground three
This ground suggests that it was open to the Tribunal to find that the applicant was a refugee. A review of the decision indicates that the Tribunal reviewed the evidence presented and set out its findings reported by reasons. The Tribunal formed the view that there was no plausible evidence placed before it to indicate that there was a real chance that the applicant would suffer persecution from either his sister’s husband’s family or their supporters, government authorities, police or anyone else either now or in the reasonable foreseeable future. The significant basis for this conclusion related to the applicant’s credibility.
This ground is a further invitation to this Court to undertake an impermissible merits review of the applicant’s claim. As indicated above a merits review is not available in this Court. This ground does not reveal any jurisdictional error and should be dismissed.
Ground four
This is the first of the additional grounds of review contained in the applicant’s written submissions filed on 24 June 2009 which claims that the Tribunal failed to take into account relevant considerations. The applicant claims that the Tribunal did not take into account relevant considerations or integers central to his claim. Ms Weston in her written submissions indicated to the Court that the first respondent understood this ground to be an allegation that the Tribunal committed an error of the type found in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802. In that decision His Honour Allsop J at [42] distinguished between failure to consider a claim, which is jurisdictional error and “…failure merely to attend to evidence, even probative evidence, and by such route commit a factual error” which is not a jurisdictional error.
As the paragraph drafted in the applicant’s written submissions does not provide any information in respect to what integer or evidence was not considered by the Tribunal nor is this claim supported by any written or oral submission identifying the aspects of the claim alleged to be overlooked. An independent review of the Tribunal’s decision clearly established that all the issues raised by the applicant at various times were addressed and considered. I am not satisfied that this ground can be sustained and should be dismissed.
Ground five
The second ground in the applicant’s written submissions filed on 24 June 2009 raised the issue of pressure on the applicant from his sister’s husband’s family and their supporters. The claim is that the Tribunal failed to consider that the applicant “had been under immense pressure from his sister’s husband’s family and their supporters” which was the central claim made by the applicant in these proceedings. A review of the decision record indicates that this was the central focus of the Tribunal in its deliberations and recorded in the decision record. A substantial part of the “Findings and Reasons” being paragraphs [45]-[54] address this particular issue. These findings are summarised at paragraph [56] which states:
In the Tribunal’s view there is no plausible evidence before it that there is a real chance that the applicant will suffer persecution from his sister’s husband’s family and their supporters majority caste members of the Thevar community, government authorities or police or anyone else in India either now or in the reasonably foreseeable future because of his race, his membership of particular social group, including as a member of his family or as a member of the minority caste group or community, or, to the extent that he is claiming it because of his political opinion or imputed political opinion or for any other Convention reason.
I agree with the written submissions made by Ms Weston that the Tribunal did consider the applicant’s claims and did not commit an error of the kind found in HTUN v Minister for Immigration & Multicultural & Indigenous Affairs (supra).
Ground six
This is the third of the additional grounds contained in the applicant’s written submissions and claims a failure to record the decision in accordance with s.430 of the Act. This ground does contain particulars which state:
a)The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant;
b)The Tribunal has found that any persecution suffered was not for any Convention reason but did not give reasons for this finding.
Section 430(1) of the Act provides:
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
It has been held that a breach of s.430 is not jurisdictional. In Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 the Full Court of the Federal Court Wilcox, Branson and Marshall JJ held at [38]:
A failure by the Tribunal to comply with s430, does not, in itself, constitute a ground of review under the old s476.
In Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 the Court cautioned that a failure by the Tribunal to comply with s.430 may have other consequences and stated:
The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.
The effect of Ms Weston’s submissions was firstly that the Tribunal did not breach s.430, and secondly, even if it did so, that breach would not have affected the Tribunal’s jurisdiction. It was submitted that the reading of the Tribunal’s decision showed that the Tribunal did not believe the applicant’s evidence and the reasons for this lack of belief were:
a)The Tribunal did not accept that the applicant was a witness of truth;
b)That the sister’s husband or his family or their supporters from the rival caste murdered the applicant’s sister or his father as the applicant claimed or that they harmed the applicant’s mother;
c)Records produced indicate that the sister’s death was from suicide;
d)As the sister’s death was not murder does not accept that the applicant’s father was harmed because he was trying to have his sister’s husband found guilty;
e)No plausible evidence that the applicant’s mother or sister was beaten nor injured as claimed;
f)Did not accept the applicant’s claim she was attacked when she returned to India and that he found that his house was damaged for the reasons he claimed;
g)Did not consider that it was consistent with the applicant’s claims that he was of interest to the authorities and was watched and picked up by police authorities.
Those matters set out in the decision record which complies with s.430 of the Act. Even though the Tribunal’s Statement of Reasons were relatively brief, consisted of four pages of reasoning, the Statement of Reasons complied with each paragraph of s.430(1) of the Act. In Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 which dealt with s.430 of the Act and Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme [2003] HCA 56 a breach of s.430 does not affect the decision of the Tribunal.
On my reading of the decision of the Tribunal, it is clear that the Tribunal rejected the applicant’s claims because it formed an adverse view of the applicant’s credibility. Findings of credibility are factual findings and are matters for the administrative decision maker being the Tribunal member. The Tribunal has given its reasons for forming a negative view of the credibility of the applicant’s claim. It was open to the Tribunal to make those adverse findings of credibility on the basis of the applicant’s evidence. The Tribunal is not required to refer to every piece of evidence when setting out its reasons for decision but it does, in my view, set out its reasons for making the finding it did. This ground cannot be sustained and should be dismissed.
Ground seven
This is the fourth issue raised in the applicant’s written submissions. He claims that the Tribunal failed to note that the applicant satisfied the definition of “refugee” as defined in Article 1A(2) of the Convention. The applicant sets out the four key elements of the definition but there are no particulars or submissions to advance the claim. In effect the applicant is simply recording his disagreement with the Tribunal’s conclusion and specifically that it did not accept his claim that he was a refugee. This appears to be a further attempt and invitation to the Court to engage in an impermissible merits review.
A further element of this ground is that the Tribunal failed to analyse the “future harm” the applicant may face if he is to return to India. As previously mentioned in paragraph [56] of the decision the Tribunal specifically addressed this issue and effectively summarised in the previous paragraphs [45]-[55]. Again on my reading of the Tribunal decision it is clear that the Tribunal rejected the applicant’s claim because it formed that adverse view of the applicant’s credibility on a number of issues. I am satisfied that this ground cannot be sustained and should be dismissed.
Conclusion
The Court is acutely aware that this matter has been referred to three separate Tribunals for reconsideration of the delegate’s decision. The applicant appears before this Court as a self represented litigant and has had the benefit of legal advice by an allocated panel member. However, the initial application and the subsequent written submissions which are in effect an amended application lists seven grounds of review all of which are general statements of issues commonly addressed in administrative review cases. None of the grounds are particularised to indicate any reference to the applicant’s specific issues nor has there been any attempt at written or oral submissions to explain whether these grounds are relevant to the decision currently under review. On the material before the Court contained in the Court Book and in the absence of any transcript or submissions the Tribunal appears to have addressed each of the issues raised by the applicant and provided clear and logical analysis for the ultimate rejection of the applicant’s claim.
As I have indicated above the Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claim is a matter for the Tribunal and I am satisfied that its findings in this respect were open to it by rational grounds on the material before it and discloses no error in the treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concern it had with aspects of the applicant’s evidence which it raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, the finding that he was not credible. In the circumstances the application should be dismissed with an order of costs against the applicant.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 28 August 2009
0
14
1