SZKOR v Minister for Immigration

[2017] FCCA 1848

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZKOR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1848

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal denied procedural fairness to the applicants – whether the Tribunal was required to consider the Refugees Convention Criteria – whether the Tribunal failed to consider an integer of the applicants’ claim – whether the Tribunal failed to investigate a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 65, 424AA, 424A 425, 476

Cases cited:

SZKOR & Anor v Minister for Immigration and Citizenship & Anor [2008] HCASL 522

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

First Applicant: SZKOR

Second Applicant: SZKOS

Third Applicant: CHY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3001 of 2015

Judgment of: Judge Nicholls

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Sydney

Delivered on: 8 August 2017

REPRESENTATION

Solicitors for the Applicants: First applicant in person and on behalf of the second and third applicants

Solicitors for the Respondents: Mr M Wiese of Clayton Utz Lawyers

ORDERS

1. The application made on 4 November 2015 and amended on 1 December 2015 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3001 of 2015

SZKOR

First Applicant

SZKOS

Second Applicant

CHY15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 November 2015, and amended on 1 December 2015, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 16 October 2015, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visas to the applicants.

2. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

1. The applicants are husband (“the first applicant”), wife (“the second applicant”) and their child (“the third applicant”). The applicants are all citizens of India (CB 5, CB 20 and CB 27). The first and second applicants arrived in Australia on 17 October 2006 as the holders of Tourist visas, and the first applicant applied for protection shortly after (the second applicant applied as a member of the first applicant’s family unit). The applications were refused, and the appeal process culminated in Special Leave being refused by the High Court on 3 September 2009 (see SZKOR & Anor v Minister for Immigration and Citizenship  &  Anor [2008] HCASL 522 and see CB 104.5 to CB 105.3 and [4] at CB 175).

2. The third applicant was born on 7 October 2010. On 24 October 2012, the first and second applicants applied for a protection visa on behalf of the third applicant, with the first and second applicants applying as members of the third applicant’s family unit. Those applications were refused on 30 November 2012, and the Refugee Review Tribunal affirmed the decision on 11 June 2013 ([5] at CB 175).

3. Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicants applied for protection a second time on 4 July 2013. The first applicant made claims in his own right. The second and third applicants applied as members of the first applicant’s family unit (CB 1 to CB 80).

4. In a written statement provided with the application for the protection visas, the first applicant claimed to fear harm on the basis of his political opinion and “active” membership of the Bhartiya Janta Party (“BJP”) in India (CB 78 to CB 80). The first applicant claimed to have been “interested” in politics since a child, as his father was working with “Vishwa Hindu parishad known as VHP and Rashtriya Seva Sangh known as RSS” (CB 78.3). The first applicant claimed that he was “handling the office of [the] BJP” in his area, which was near a “sensitive area” dominated by the “Muslim community”, that also had an opposition party office in that area (CB 78.6).

5. The first applicant claimed that there had been “conflicts” at almost every BJP event due to the “sensitive atmosphere” between the opposition parties. The first applicant also claimed to have taken “leadership” of the campaign and as a result, he “came (sic) in the eyes of some members and activists of [the] opposition party” (CB 78.8). The BJP party subsequently won the election in Gujurat and all members were “very happy” and organised a “procession” through Gujurat. When passing through the “sensitive area”, the first applicant claimed that stones were thrown by the opposition party and people “started rushing to save their lives”, but then the police came and dealt with the situation (CB 79.1 to CB 79.2).

6. The first applicant then claimed that he continued working with the BJP and carried on with his “routine life”, but that his “political enemies” were trying to “ruin” his life, and had created an “intelligent conspiracy” to ruin him financially. He claimed that his business partner “trapped” him in a “financial blunder” with the help of his “political enemies” and his “business collapsed slowly” (CB 79.5).

7. The first applicant then claimed to have been abducted for ransom by “unknown people” and released. However, some months later, he was attacked by “some people” on his way home from his business office. He claimed that he did not recognise them as it was dark. He was subsequently taken to the hospital (CB 79.6).

8. Six months later, the first applicant then claimed that he and the second applicant had “some kind of explosive” thrown at them from a car as they were riding home on a motorcycle. The second applicant was injured a “little”, and the first applicant claimed the incident meant that “some people” were attacking them “whenever they [got] the chance” (CB 79.9). The first applicant made a complaint to police, but since he did not know who the attackers were, the police could not search for them (CB 80.3).

9. The first applicant claimed to have then moved to his father-in-law’s house with the second applicant 80km away. They then moved back to their family home, as the second applicant’s father became scared after “some unknown people” were asking about the first applicant. The first applicant claimed not to be able to avail himself of police protection because he did not know who the perpetrators were (CB 108.4). The first and second applicant subsequently applied for visas and came to Australia.

10. Two further claims were contained in the first applicant’s protection visa application. These were that Narendra Modi was “contesting”, on behalf of the BJP, in the federal election, and the first applicant feared that the Congress Party, and its allies, would harm BJP supporters for this reason. Further, as the first applicant had stayed in Australia for a considerable period, BJP opposition supporters would perceive him as wealthy and abduct his child to extort money from him (CB 10).

11. The delegate refused the application on 7 August 2014. The applicants were notified by letter sent to the first applicant at their nominated address for service (CB 99 to CB 118). The applicants applied for review to the Tribunal on 9 September 2014 (CB 100 to CB 124). The applicants were invited to, and attended, a hearing before the Tribunal on 22 September 2015 (CB 129 to CB 138). Following the hearing, the applicants’ representative forwarded another written statement from the first applicant to the Tribunal on 29 September 2015 (CB 169).

12. The Tribunal affirmed the delegate’s decision to refuse the applicants protection visas on 16 October 2015. The applicants were notified by letter dated 19 October 2015, and sent to their authorised representative (CB 171 to CB 190).

13. The Tribunal found that “the [first] applicant [was] not a witness of truth and [was] not satisfied that the [first] applicant [had] told the truth in relation to critical aspects of his claims” ([35] at CB 181). Although the Tribunal accepted that the second applicant “had not been told  very much” by her husband because “people don’t tell the ladies everything” in India ([34] – [35] at CB 181), the Tribunal was not satisfied that she had told the truth about the motorbike incident that she had claimed to have been directly involved in ([35] at CB 181).

14. The Tribunal had a number of concerns with the first applicant’s credibility. It put a number of its concerns to the first applicant at the hearing ([35] at CB 181). First, when initially questioned by the Tribunal, the first applicant failed to mention that he was “handling the office” of the BJP in his area as he had outlined in his written statement. The Tribunal took into account the first applicant’s

    
    

    post-hearing written statement, but in light of its further credibility concerns, the Tribunal did not accept that the “passage of time” or the “stress” of the Tribunal hearing were adequate to explain the omission ([36] at CB 181 to CB 182 - [38] at CB 182).    

15. Second, the first applicant had told the Tribunal, at the hearing, that his father had been involved with the BJP, which was in coalition with the “NDA”. When questioned by the Tribunal, the first applicant stated that he did not know what “NDA” stood for, but later in the hearing indicated that it stood for “National Defence Academy”. The Tribunal raised with the applicant, at the hearing, that the National Defence Academy was not “listed” as a party that had links to the BJP, but that the National Democratic Alliance was. The first applicant indicated that he did not wish to comment on this information ([39] - [40] at CB 182). The Tribunal took into account the first applicant’s post-hearing written statement, but considering that the first applicant had claimed to have had an interest in politics since his childhood, found that the “mistake” reflected poorly on his credibility ([40] at CB 182).

16. Third, during the hearing, the Tribunal noted its concerns with the inconsistency between the first applicant’s oral evidence and that which was contained in his written statement regarding his business and business partner. When questioned by the Tribunal, the first applicant said he did not wish to comment ([41] at CB 182 to CB 183). The Tribunal took into account the first applicant’s post-hearing written statement, but did not consider that the passage of time, the first applicant’s “nerves” at the hearing, or his fear of returning to India, was able to satisfactorily explain the inconsistency ([42] at CB 183).

17. Fourth, at the hearing, the first applicant had told the Tribunal that he assisted with an election campaign in 2001 or 2002 and that stones had been thrown during the celebration procession. Further, the first applicant had claimed that he had been kidnapped in 2004. The first applicant said that nothing else happened after that event. The Tribunal, at the hearing, raised with the first applicant that his oral evidence was “very different” to his written statement. The first applicant indicated that “it had been so long he missed out some parts” ([45] at CB 183). The second applicant did not wish to comment. The Tribunal was not satisfied that the passage of time explained the inconsistencies as the differences were “more than mere detail” and “involve[d] a number of incidents” ([45] at CB 183 to CB 184).

18. Fifth, in the interview with the delegate, the first applicant had said that acid had been thrown at him and the second applicant, while on a motorbike. This was inconsistent with the written statement provided with the visa application. The first applicant stated that he was “nervous” and had “made a mistake in explaining it properly” ([46] at CB 184). The Tribunal noted that the first applicant’s post-hearing written statement was different to his oral evidence to the Tribunal, and his previous written statement provided with the visa application. The Tribunal was not satisfied that the passage of time explained the inconsistency ([47] – [48] at CB 184).

19. Sixth, the Tribunal noted with the first applicant at the hearing, the delay between the motorbike incident, which the first applicant said occurred in late 2005 or the start of 2006, and the first and second applicant leaving India in October 2006. The first applicant chose not to respond to the Tribunal’s concerns in this regard ([49] at CB 184). The Tribunal also noted the first applicant’s post-hearing written statement which indicated he was seeking BJP protection. However, the first applicant’s previous written statement made no mention of this, and given the Tribunal’s other credibility concerns, and in light of the fact that the first and second applicant had been granted the visas on 14 July 2016, the Tribunal found that the delay in leaving India reflected poorly on the reliability of his claim to fear harm ([52] at CB 184 to CB 185).

20. The Tribunal found that the first applicant was not a member of the BJP and did not do any work for the BJP. Further, the first applicant had not come to the adverse attention of the BJP’s opposition party by reason of any political opinion or imputed political opinion. The Tribunal did not accept that the first applicant was targeted or injured in a victory procession after an election ([54] at CB 185).

21. The Tribunal also did not accept that the first applicant’s business partner had trapped him in a “financial blunder” with the help of his political enemies as he had claimed. Further, given the Tribunal’s credibility concerns, it did not accept that the first applicant was abducted in 2004 or had been attacked on his way home from work and taken to hospital. The Tribunal also did not accept that the first applicant and the second applicant had been attacked in any way while on a motorbike. The Tribunal did “not accept the first or second named applicants were, or are, of any adverse interest to anyone in India” ([57] at CB 185).

22. Further, with regard to the claim that Narendra Modi was contesting the federal election, the first applicant stated at the hearing that he no longer had “any concerns about [that]” ([58] at CB 185).

23. The applicants claimed that on return to India, the first applicant would be considered wealthy and therefore a target for extortion and the third applicant would be at risk of abduction for this reason. The Tribunal accepted that child kidnappings for extortion are on the rise in India. However, the Tribunal did not accept that people returning from Australia would be perceived as wealthy for that reason, and were specific targets for extortion. Therefore, the chances of the third applicant being abducted was remote ([58] at CB 185 to [59] at CB 186).

24. The Tribunal found that the applicants did not meet the requirements of the complementary protection criteria for the grant of the visas ([60] at CB 186 to [66] at CB 187).

The Application to the Court

1. The application to the Court, as amended, is in the following terms:

   “1. The Administrative appeals Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

   2. The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act.

   3. The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

   4. The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a BJP activist in India was at risk of harm from Congress party, and not able to access effective protection.

   5. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

   6. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 16 October 2015 was a judicial error.”

   [Errors in original.]

Before the Court

1. The first applicant appeared in person. Although an interpreter in the Gujarati language was present, the first applicant’s command of English was such that he did not use the services of the interpreter. I made it clear that the first applicant should refer to the interpreter if he had any difficulties during the hearing.

2. The first applicant confirmed that that he would also represent the second and third applicants.

3. The first applicant’s submissions were as follows. One, that he had told the truth to the Tribunal, and the Tribunal should have believed him as to events he claimed had occurred in India. Two, that he and his family (which now included a newborn second child), had a good life living in the Australian countryside. There was a bright future and good education for his children. Further, that he and his wife had been in Australia for a long time.

4. As I explained to the first applicant, the Court had no power to intervene and consider the merits of his and his family’s claims to protection. The applicants’ preference to remain in Australia was not relevant to the Court’s consideration of their application to it. That consideration was focused on whether the Tribunal had made a “legal mistake” (jurisdictional error).

5. Further, the Tribunal was not required to uncritically accept everything or anything that he had said (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437). On the evidence, the Tribunal’s findings on the credibility of his claims were reasonably open to the Tribunal to make on what was before it. No jurisdictional error arises from this complaint.

6. It was clear that the applicant had no understanding of the grounds of the application to the Court, even though, at first, he said he had drafted them himself. I gave him the opportunity to address each ground separately. He subsequently said that a “friend” had drafted the grounds for him.

The Application to the Court  

1. Ground one alleges that the Tribunal denied the “applicant”, presumably the first applicant, procedural fairness because its adverse finding on his credibility was not “obviously open on the known material”. The ground contends that the Tribunal made this finding without giving the “applicant” the opportunity to be heard in respect of these matters.

2. There appear to be two elements to the first applicant’s complaint. One, that the Tribunal made findings not reasonably open to it, and not probative of the material before it. Two, that the first applicant (and perhaps the second applicant), was denied an opportunity to comment on, or respond to, the matters relied on by the Tribunal which led to its adverse credibility finding.

3. I have already set out in some detail above (at [15] – [26]) in this judgment, the Tribunal’s reasoning and findings. Any fair reading of the Tribunal’s decision record, that is, the analysis in its decision record, and the findings that the Tribunal made, in the context of the material before it, reveals that the Tribunal’s findings which informed its conclusion as to the first applicant’s lack of credibility, was reasonably open to it on what was before it. Contrary to the assertion in the ground, the conclusion reached by the Tribunal and the findings that informed it, were reasonably open to it.

1. The applicants assert a denial of procedural fairness, presumably at the Tribunal hearing. Despite opportunity to do so, the applicants have not put before the Court any evidence, for example by way of a transcript of the Tribunal hearing, as to what occurred at the Tribunal hearing. The only evidence of what occurred at the Tribunal hearing is that which is in the Tribunal’s decision record.

2. The Tribunal’s obligation in relation to procedural fairness, and a fair hearing, arises from the invitation to an applicant pursuant to s.425 of the Act to attend the hearing, and to give evidence and present arguments in relation to the issues in the review (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609). That is, issues that are not “live” issues as a result of the delegate’s decision.

3. As mentioned above, the only relevant evidence available in the current case, are the Tribunal’s references in its decision record, to what occurred at the hearing. It is clear that the first applicant, and the second applicant, were put squarely on notice by the Tribunal as to its concerns relating to the credibility of the evidence given, and the events recounted in that evidence.

4. The Tribunal noted in its decision record ([14] CB 177), that the applicants appeared before the Tribunal on 22 September 2015, to give evidence and present arguments. It noted that it took evidence from the first and second applicants, but did not take evidence from the third applicant due to his young age. At that time, the third applicant would have been just under the age of five years. There is nothing in the evidence before the Court to show that he was competent in explaining his claims to protection addressing the issues in the review, or putting arguments regarding the issues in the review.

5. The Tribunal’s findings on credibility are set out at [33] (at CB 181)

   
   

   to [52] (at CB 184 to CB 185) of its decision record. Based on the evidence before the Court, it is clear that during the hearing the Tribunal raised its concerns with the first applicant’s oral evidence. The Tribunal noted that in key respects, his oral evidence, was different to his written statement in support of his claims. The Tribunal also raised with the first applicant its concerns about his inability to provide details about his claims, that in the circumstances, he should have been able to provide to the Tribunal.

6. In relation to the second applicant, the Tribunal understood that her evidence was that she had not been “told very much” about relevant events, and therefore was not able to corroborate much of the first applicant’s claims. To the extent that she did give evidence about a particular incident (the motorbike incident), the Tribunal separately noted its concerns with her evidence, and was not satisfied that she had told the truth about that incident ([35] at CB 181).

7. The Tribunal then set out at [36] – [38] (at CB 181 to CB 182) and [39]  - [40] (at CB 182), [41] – [42] (at CB 182 to CB 183),

   
   

   [43] – [45] (at CB 183 to CB 184), [46] – [48] (at CB 184)

   
   

   and [49] – [56] (at CB 184 to CB 185), six separate matters that informed its conclusion as to the adverse credibility of the first and second applicants. It is important to note that the Tribunal’s findings arose from specific references to what the Tribunal said it put to the applicants, at the hearing, in relation to each of those six matters.

8. Procedural fairness requires that issues dispositive of the review, which are not “live” issues as a result of the delegate’s decision, must be discussed or aired at the hearing. It is important to note that there is further evidence to support the Tribunal’s report that it put these matters to the applicants at the hearing. Following the hearing, the Tribunal received further written submissions from the applicants, which addressed matters raised at the hearing, which indicates that those matters were indeed put to them. For the sake of completeness, I note that the Tribunal considered the post-hearing written submissions throughout its analysis, and had regard to those submissions in making its findings.

9. Further, at the hearing, the Tribunal put to the applicants, pursuant to s.424AA of the Act, certain information which the Tribunal said would be the reason, or a part of the reason, for affirming the delegate’s decision (see [46] (at CB 184) and [50] (at CB 184)). On the available evidence before the Court, the applicants were given the opportunity to comment on this information.

10. In all, ground one does not reveal jurisdictional error on the part of the Tribunal.

11. Ground two asserts that the Tribunal fell into legal error because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Act.

12. The difficulty for the applicants is that the ground contains no particulars whatsoever. Nor was the first applicant able to explain what was meant by this ground in oral submissions to the Court. In any event, on what is before the Court, there is nothing to indicate that the Tribunal failed to consider any of the claims made by the applicants, or any evidence relevant to those claims.

13. As already noted above, the Tribunal gave the applicants an opportunity to be heard in relation to the issues in the review. Its concerns, which ultimately informed its conclusion on credibility, were raised with the applicants at the hearing. This in turn informed its conclusion as to whether the applicants satisfied the criterion at s.36(2)(aa) of the Act, such that the visa must be granted (s.65 of the Act). The Tribunal’s finding that it was not satisfied that the applicants met the criterion for the grant of the visas, was reasonably open to it on what was before it. I cannot see that the Tribunal fell into legal error in the way, generally alleged by the applicants, in ground two.

14. Ground three asserts that the “applicants satisfy the key elements” of the, presumably, Refugees Convention “definition”. That is, the applicants assert that the Tribunal did not consider whether the applicants met the criterion at s.36(2)(a) of the Act, and fell into legal error as a result. It appears that the applicants seek to press the advice provided to the Tribunal by the applicants then migration agents, and in particular, the advice provided by the “Special Counsel” dated 13 November 2014, in relation to the operation of s.48A of the Act, in light of the Full Federal Court’s judgment in SZGIZ (see [13] at CB 177 and CB 139 to CB 141).

15. The Tribunal considered the assertion made in that “opinion”, that the Tribunal should consider the applicants’ claims to protection under the Refugees Convention criterion, notwithstanding that that criterion had already been considered and refused by a delegate, and by another previously constituted Tribunal.

16. The Tribunal found on the facts before it (not now disputed by the applicants), that the first applicant had previously applied for a protection visa when the only relevant criterion was the Refugees Convention criterion. Section 48A of the Act barred a further application by the first applicant relying upon that criterion. The effect of SZGIZ was that it nonetheless allowed the applicants to make another application for a protection visa relying upon the complementary protection criterion.

17. It may be noted that the Special Counsel’s “opinion” was drafted before the Full Federal Court’s judgment in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366, which, for current purposes, establishes that a protection visa application in these circumstances, cannot be considered against the Refugees Convention criterion. Therefore, there is no error in the Tribunal proceeding to consider the first applicant’s claims against the complementary protection criterion only.

18. It is important to note that the Tribunal separately considered the situation of the second applicant. In particular, whether any of the material that had been put before it could be “construed as a claim for protection by the second named applicant” ([64] at CB 187).

19. The Tribunal found, with reference to findings of fact expressed earlier in its decision record, that there was not a real chance that the second applicant would suffer “serious harm” if she returned to India now, or in the reasonably foreseeable future (with reference to s.36(2)(a) of the Act). It also did not accept that there was a real risk that the second named applicant would suffer “significant harm” if she were to return to India now, or in the reasonably foreseeable future (with reference to s.36(2)(aa) of the Act) ([64] at CB 187).

20. In relation to the third applicant, the Tribunal found that he did not satisfy s.36(2)(b) or (c) of the Act, on the basis of being a member of the same family unit as a person who satisfies either s.36(2)(a) or (aa) of the Act and holds a protection visa. Therefore, the Tribunal found that the third applicant, along with his parents (the first and second applicants), did not satisfy any of the relevant criteria in s.36(2) of the Act ([65] at CB 187). In all, ground three is not made out.

21. Ground four asserts that the Tribunal failed to consider an integer of the first applicant’s claims because it failed to consider the question of whether or not a BJP activist in India was at risk of harm from the Congress Party, and was not able to access effective, presumably state, protection.

22. The ground appears to ignore a finding made by the Tribunal that the first applicant was not an active member of the BJP and did not do “any work” for it ([54] at CB 185). Once the Tribunal reached that conclusion based upon findings that were reasonably open to it, it was not necessary for the Tribunal to then proceed to consider whether an active member of the BJP may be at risk of harm in India, and whether he could access state protection. In all, ground four is not made out.

23. Ground five asserts that the Tribunal’s decision was unjust, and was made without taking into account “the full gravity of [the] applicants (sic) circumstances and consequences of the claim”. In the circumstances, this is presumably a reference to the first applicant.

24. The ground lacks particularity. Before the Court, the first applicant was unable to explain what was meant by this ground, beyond seeking to take issue with factual findings made by the Tribunal. On the evidence before the Court, I cannot see that there was any claim, or integer of a claim, made by the first applicant, that the Tribunal failed to consider. In all, it would appear that the ground seeks impermissible merits review in that it seeks to challenge factual findings made by the Tribunal and, in particular, the adverse finding as to credibility. In all, ground five is not made out.

25. Ground six asserts that the Tribunal failed to investigate “the claim” to fear persecution in India. It is not clear what the exact scope of the legal error may be that the ground seeks to assert.

26. In any event, as the Minister correctly submits, if this is meant to be some allegation that the Tribunal was under a duty to undertake an investigation into the first applicant’s claims beyond inviting the applicant to a hearing, then there is no support for any such allegation.

27. There is no general duty on the Tribunal to make further enquiries in relation to an application for a protection visa. As was said in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”), the duty on the Tribunal to undertake some independent investigation into an applicant’s claims can arise only in very limited circumstances. As the High Court said, in circumstances where “a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” support a finding of jurisdictional error (SZIAI at [25]). There is nothing in the ground, nor have the applicants pointed to, nor is there anything in the material before the Court, to indicate that any particular line of enquiry that the Tribunal should have undertaken was not so undertaken. Ground six also is not made out.

Conclusion

1. None of the applicants’ grounds of the amended application reveal jurisdictional error on the part of the Tribunal. The application should be dismissed. I will make the appropriate order.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 8 August 2017