SZHYH v Minister for Immigration
[2017] FCCA 3086
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZHYH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3086 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – Applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36, 48A, 48B, 417, 424A. |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 |
| Applicant: | SZHYH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 551 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 9 February 2017 |
| Date reserved: | 9 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Ms S Burnett |
| Solicitors for the Respondents: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 11 March 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 551 of 2016
| SZHYH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
AS CORRECTED
Introduction
The Applicant in this proceeding is a male citizen of China aged 50 years, having been born on 19 October 1967.
By Application filed in this Court on 11 March 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 23 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 13 June 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia holding his People’s Republic of China passport on 10 October 2004 on a Business (Subclass UC-456) visa and departed Australia on 14 October 2014.
He then re-entered Australia on 3 May 2005 on a Visitor (Subclass TR-676) visa (Visitor visa) which expired on 17 May 2005 and the Applicant has remained in Australia ever since.
The Applicant applied for a Protection visa on 17 May 2005, which was refused by a Delegate on 4 August 2005, and this refusal was affirmed by the Refugee Review Tribunal (RRT) on 17 November 2005 (first RRT decision).
On 29 November 2005 an internal request was initiated by the Department of the Minister under s.417 of the Migration Act 1958 (Cth) (the Act), which was finalised as it did not meet the guidelines for referral.
On 22 December 2005, the Applicant lodged an application with the Federal Magistrates Court of Australia (FMCA), seeking judicial review of the first RRT decision and on 17 July 2007 the FMCA set aside that decision by remitting the matter to the RRT for reconsideration but on 14 October 2007 the RRT again affirmed the decision of the Delegate to refuse a Protection visa to the Applicant (second RRT decision).
On 15 October 2007, the Department initiated a second s.417 request which did not meet guidelines for referral.
On 31 October 2007 the Applicant lodged an application with the FMCA for judicial review of the second RRT decision. On 15 October 2008 the FMCA ordered, by consent, that the matter be remitted to the RRT again for review of the Delegate’s decision and on 16 February 2009 the RRT affirmed the decision of the Delegate to refuse a Protection visa (third RRT decision).
On 27 February 2009 the Department initiated a third s.417 request which did not meet guidelines for referral.
On 16 March 2009, the Applicant lodged an application for judicial review with the FMCA of the third RRT decision and on 4 June 2009 the FMCA dismissed that application.
On 24 June 2009, the Applicant lodged an appeal from the FMCA decision to the Federal Court of Australia and on 19 August 2009 Graham J in the Federal Court dismissed that appeal.
On 16 September 2009, the Applicant lodged an application for special leave to appeal to the High Court from the judgment of Graham J, which application was dismissed by the High Court on 10 March 2010.
The Applicant then on 29 March 2010 lodged a request under s.48B of the Act that the Minister determine that s.48A did not apply to prevent the Applicant making an application for a Protection visa. The request was finalised on 28 June 2010 as the request did not meet the guidelines for referral.
The Applicant then remained an unlawful non-citizen from 5 August 2010 until he lodged his current Protection visa application on 26 September 2013. This current Protection visa application followed the introduction of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.
Grounds and Criteria for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5] The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6] Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7] The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Claims for Protection
In a letter dated 28 December 2011 attached to his Protection visa application the Applicant made the following claims for protection:
a)The Applicant fled from China to Australia in 2005 due to persecution.
b)In early 2005, following the suicide of his friend as a result of local government bullying, the Applicant organised gatherings, parades and quiet sit-ins in order to protest to the government and to ask for justice. This course of action “infuriated the local government” which led to his arrest by the Public Security Bureau in China on 8 February 2005.
c)While under arrest, the Applicant was “cruelly tortured and treated inhumanly”. In order to get out of prison, in March 2005 his wife bribed the Public Security Bureau and he was able to get bail, conditional upon him being restricted from moving and being “on call at all times”.
d)Due to fearing for his life, fear of “being arrested and locked up again”, and being “afraid that [he] could suffer no more” the Applicant came to Australia.
e)The Applicant fears that he is now “an online wanted fugitive” in China, and that if he was sent back there he “will be put into prison and [his] life would probably come to [an] end”.
f)The Applicant claimed that the Chinese Government is still “tracing” him and “never stopped chasing” him. This was said to be evidenced by three documents available since the third RRT decision being:
i)a letter sent from the Applicant’s daughter dated 28 June 2010 stating that the Chinese authorities have visited their family home in China enquiring after the Applicant;
ii)the envelope in which the letter from the Applicant’s daughter arrived, which shows that the Applicant received the letter in June, 2010; and
iii)a copy of an order of arrest and a detention warrant in the Applicant’s name which was sent to him on 18 November 2011 by his wife.
Decision of Delegate
The Applicant attended an interview with the Delegate on 27 May 2014. The interview was conducted with the assistance of an interpreter in the English and Mandarin languages.
The Delegate in her Decision Record summarised the Applicant’s original claims and noted that at the hearings before the RRT which resulted in the first, second and third RRT decisions, that his claims had been amended and new claims added which included that:
a)he had worked for two companies in China before coming to Australia and that his responsibilities included administration, human relations, promotions, dismissals, training, finance and expanding to new markets;
b)he made a short visit to Australia in October 2004 to buy materials for the Longxing Color Printing Company Limited which company had given him a reference for the Visitor visa on which he travelled to Australia in May 2005; and
c)he had difficulty in obtaining his Chinese passport but he left China legally without any difficulty because he paid bribes.
The Delegate stated the Applicant’s claims for protection in the current Protection visa application which she was considering as including that:
a)the Applicant always hated corruption of local government and sympathised with those who were bullied by local government. When his friend committed suicide, as referred to in [17(b)] above, the Applicant organised parades, gatherings and quiet sit-ins to protest against the government and seek justice for his friend; and
b)he has suffered and is wanted as a fugitive by the Chinese government and cannot return to China as he will then be arrested and imprisoned.
In the result the Delegate refused to grant the Applicant a Protection visa. The Delegate only had the power to consider the Protection visa application on the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, the Delegate considered the Applicant’s Protection visa application under both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicant under either criteria and refused to grant the Applicant a Protection visa.
The Delegate recorded that the Applicant’s testimony at the interview with her appeared vague, rehearsed and contrived, and she found that significant elements of that testimony were either internally inconsistent or not plausible. She considered that he had significantly misrepresented the level of his fear. She dismissed the alleged reasons for his fear in their entirety and found that he had fabricated his claims to strengthen his Protection visa application.
The Delegate did not accept that the Applicant was involved in any anti-government activities in China or that he was of any adverse interest to the Chinese authorities or that his family was interrogated or targeted by Chinese authorities for any reason. She thus refused to grant him a Protection visa.
Decision of Tribunal
The Applicant applied to the Tribunal on 4 July 2014 for merits review of the Delegate’s decision. His registered migration agent, who lodged his application for merits review, gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
On 2 October 2015 the Applicant appeared before the Tribunal to give evidence and present arguments.
The Tribunal was of the view that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion and not the Refugee Convention criteria in s.36(2)(a) of the Act. The correctness of this view was subsequently confirmed in SZVCH at 379 [44] per Kenny, Siopis and Besanko JJ and at 398-399 [113]-[114] per Mortimer J.
At [5]–[22] of its Decision Record the Tribunal recorded the Applicant’s claims for Protection as they had been made and evolved since his first Protection visa application was lodged on 17 May 2005.
At [8] of its Decision Record the Tribunal recorded that the Applicant admitted that he had not been employed by the Longxing Color Printing Company Limited when he had come to Australia in May 2005 and that the letter of reference on the letterhead of that company confirming his employment, which he submitted for the purposes of his Visitor visa, was false.
At [23]–[46] of its Decision Record the Tribunal recorded its discussion of the Applicant’s claims with the Applicant at the Tribunal hearing. Much of that discussion involved seeming inconsistencies in his evidence as made over the years by him since the lodgement of his first Protection visa application.
At [47]–[60] of its Decision Record the Tribunal stated its conclusions.
At [59] of its Decision Record the Tribunal recorded that it did not accept that the Applicant was a witness of truth because of significant inconsistencies in his evidence and it did not accept that the Applicant had ever been of any interest to the Chinese authorities.
I do not consider it necessary for present purposes to generally recount and recapitulate the Tribunal’s detailed consideration of the claims and evidence given by the Applicant since 17 May 2005 when he lodged his first Protection visa application. The Tribunal proceeded in this respect by considering his claims for protection as articulated from time to time and putting to the Applicant at the hearing various perceived inconsistencies in that body of evidence and seeking his explanation of those inconsistencies. The Tribunal gave extensive and comprehensive reasons for rejecting the Applicant’s claims to protection and those reasons appear to be legally reasonable and do not constitute a blanket, reflex or exaggerated adverse credit finding but rather reflect a proper examination of the Applicant’s claims: see AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 (AZU15) at 145 [11].
In the result the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to China that there was a real risk that the Applicant would suffer significant harm and it affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Application filed in this Court on 11 March 2016 are as follows:
1. The Tribunal failed to give to me particulars of information, including inconsistencies relating to my employment, addresses where I lived in China and where my wife and children had been living after I had left China and so on, that the Tribunal considered or had used would be the reason or a part of the reason, for affirming the decision;
2. The Tribunal failed to ensure that I understand why the information is relevant to the review;
3. The Tribunal failed to invite me to comment on the information;
4. The Tribunal took into account of irrelevant considerations. The Tribunal did not consider my claims of persecution and of that there is foreseeable consequence that if I am removed from Australia to China there is a real risk that I will suffer significant harm. The Tribunal did not consider the Certificate as the evidence to support my story and claims. The Tribunal dismissed and ignored my story and claims because the Tribunal took into account of irrelevant considerations on inconsistencies in the evidence and the Tribunal came to a credibility conclusion without considering or putting any weight on the evidence I provided and/or assessing my claims;
5. The Tribunal concluded that I was not a credible witness and therefore the Tribunal found and decided that none of my claims is true and my evidence provided is also not true; and
6. The Tribunal did not give any other reason why the Tribunal did not assess my claims or consider the evidence I provided but the Tribunal gave the only reason that my claims had been rejected or ignored due to the problem of my credibility.
Consideration
Ground 1
This Ground appears to assert that the Tribunal failed to comply with its obligation under s.424A of the Act, to give to the Applicant “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason… for affirming the decision” of the Delegate under review.
This Ground fails for a number of reasons.
First, s.424A of the Act does not require the Tribunal to give to the Applicant notice in advance of its thought processes or subjective appraisals nor to identify gaps, defects, or any lack of detail or specificity in the evidence presented to it. The Tribunal does not have to give notice of its likely conclusions, or to the existence of doubts which it may have or inconsistencies or absence of evidence: see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 619 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
“…does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…”
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Further, the information identified in this Ground relating to the Applicant’s employment, addresses in China and where his wife and children had been living after he had left China was information that:
a)was exempt from having to be given to the Applicant by force of s.424A(3)(ba) of the Act because it was information given by the Applicant in his Protection visa application and attached letter of 28 December 2013 during the process that led to the Delegate’s decision under review by the Tribunal and it was not oral information: SZNQR v Minister for Immigration [2010] FCA 152 per Rares J at [34] and MZYER v Minister for Immigration (2010) 115 ALD 382 at [50]-[53] per Dodds-Streeton J;
b)was “information” that the Applicant “gave” under s.424A(3)(b) of the Act to the Tribunal by forwarding to it the Decision Record of the Delegate in accordance with the decision of Sundberg J in Minister for Immigration v Chamnam You [2008] FCA 241 which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ; and
c)was information that the Applicant “gave” at the hearing before the Tribunal in response to questioning by the Tribunal: see [23] – [46] of the Decision Record of the Tribunal. Therefore, s.424A(3)(b) of the Act rendered inapplicable the obligation of the Tribunal under s.424A to give clear particulars of such information to the Applicant: see NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 [57] – [59] per Young J with the agreement of Gyles and Stone JJ.
In my view this Ground fails to establish jurisdictional error.
Grounds 2 and 3
These two Grounds may be dealt with together.
In my view the Tribunal was not under any obligation to advise the Applicant concerning information relevant to the review or bound to comment on it.
The Applicant had retained the services of a registered migration agent who had lodged his merits review application with the Tribunal. He was the natural person to whom the Applicant could turn for any advice he thought necessary.
The Tribunal was under no duty to act in a way asserted by these Grounds. The role of the Tribunal was as stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268]:
[265] ………….The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
Further, as Graham J said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 505 – 506 [36] – [37] and [39]:
[36] Proceedings before the tribunal are not adversarial, but inquisitorial. The tribunal is not in the position of a contradictor of the case being advanced by an applicant. A tribunal member conducting an inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for a review before the tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the tribunal to decide whether his claim has been made out; it is not part of the function of the tribunal to seek to damage the credibility of an applicant’s story in a manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. See per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 ; 75 ALD 1 ; [2003] HCA 60 at [57]–[58] ; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ; 231 ALR 592 ; 93 ALD 300 ; [2006] HCA 63 at [47] and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ; 231 ALR 340 ; 92 ALD 513 ; [2006] HCA 53 at [40] .
[37] The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
[39] It seems to me that the circumstances of this case were not such as to require the tribunal to make some further inquiry about the documents submitted by the appellant before making a decision on the application for review. The circumstances in which such inquiry is required are limited to rare or exceptional cases such as were considered by Kenny J in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; 242 ALR 455; 97 ALD 112; [2007] FCA 1318 and by Allsop J, as his Honour then was, in SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14; 98 ALD 270; [2007] FCA 1592.
Grounds 2 and 3 fail to establish jurisdictional error.
Grounds 4, 5 and 6
As to Ground 4, I do not consider that the Applicant has established that the Tribunal took into account irrelevant considerations. As I have said, its Decision Record appears to be a careful, detailed and comprehensive evaluation of the Applicant’s claims for protection but, unfortunately for the Applicant, at the end of the day the Tribunal did not accept him as a witness of truth having regard to what the Tribunal considered to be significant inconsistencies in his evidence.
As to Grounds 5 and 6, it was necessary for the Tribunal to assess the Applicant’s credibility in evaluating his claims for protection and in my view the Tribunal’s findings about the Applicant’s credibility were legally open to it on the material available. The Tribunal’s reasons for its adverse credibility findings are detailed and legally reasonable.
Otherwise, these Grounds appear to me to constitute an attack on the merits of the factual findings of the Tribunal and fail to establish jurisdictional error.
Applicant’s Outline of Submissions and ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15)
In the Applicant’s Outline of Submissions (AOS) the Applicant attacked certain findings of the Tribunal as not having been made reasonably and not being based on probative evidence. In particular the Applicant attacks as unreasonable the Tribunal’s finding expressed at [60] of its Decision Record that he had not been arrested by the Public Security Bureau on 8 February 2005 and tortured, because at [57] of its Decision Record the Tribunal had “accepted” a document entitled Certificate of Release in Detention.
However, in my view this submission does not assist the Applicant.
Rather than “accepting” the Certificate of Release in Detention, [57] of the Decision Record makes clear the Tribunal’s doubts and concerns about this document as actually supporting the Applicant’s claims of protection. Then at [59] the Tribunal stated in part:
[59] For the reasons given above I do not accept that SZHYH is a witness of truth having regard to what I consider to be the significant inconsistencies in his evidence. As I put to him, the Australia Department of Foreign Affairs and Trade has advised that fraudulent documents are relatively easy to produce in China and I give greater weight to the problems I have with his evidence than I do to the documents which he has produced in corroboration of his claims. SZHYH claimed that he would be beheaded in China if he gave false evidence or produced false documents. However, as I put to him, while I accept that China retains the death penalty, there is nothing in the evidence before me that China beheads anyone.
Then at [60] of its Decision Record the Tribunal rejected the Applicant’s claims and did not accept that the Applicant had ever been of interest to the Chinese authorities.
Having come to these adverse views about the credibility of the Applicant’s evidence and central contentions, the Tribunal did not commit jurisdictional error in giving lesser weight to the Applicant’s corroborative documents than to significant inconsistencies in the rest of his evidence. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]:
[12] … It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
The Applicant in his AOS attacks other factual findings of the Tribunal but this Court is not entitled to conduct a merits review and these attacks do not establish that the Tribunal’s decision is affected by jurisdictional error.
Finally, the Applicant referred to ARG15 in connection with the Tribunal’s adverse credibility findings concerning his claims and evidence. However, in my view nothing in this judgment assists the Applicant in establishing that the decision of the Tribunal is affected by jurisdictional error. In ARG15 the Full Court of the Federal Court of Australia found that nothing in the evidence given at the Tribunal hearing under review as recorded in the transcript provided probative evidence to support the serious adverse credibility findings made by the Tribunal or alternatively that the adverse credibility finding was irrational or illogical such that jurisdictional error was established.
However, of course, each case must turn on its own facts and in this case, in my view, the credibility findings of the Tribunal have not been shown to be unsupported by probative evidence or shown to be irrational or illogical such as to amount to jurisdictional error.
Transcript of Tribunal Hearing of 2 October 2015
I note that at the commencement of the hearing I gave leave to the Applicant to read and rely upon his affidavit of 24 January 2017 which annexed a copy of the transcript of the Tribunal hearing of 2 October 2015. Ms Burnett, who appeared for the Minister, informed me that she had availed herself of the opportunity to consider the transcript and did not oppose this leave being granted. I then informed the Applicant that I would not read the transcript generally, but only those parts to which he drew my attention. He did not refer me to any portion of the transcript either orally at the hearing or in his AOS.
Nevertheless, Ms Burnett informed me that she had read the transcript and in answer to my query informed me that the Minister, as a model litigant, had found nothing that assisted the Applicant in establishing any of his Grounds asserting that the decision of the Tribunal was affected by jurisdictional error.
Conclusion
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly his Application to this Court will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 15 December 2017
Corrections
Name of the Applicant’s friend removed in [17(b)] and [20(a)] so as to more effectually preserve the anonymity of the Applicant.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Appeal
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Standing
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