SZKTA v Minister for Immigration
[2008] FMCA 111
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 111 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – fact finding role of Tribunal – weight – procedural fairness – bias. |
| Migration Act 1958, ss. 5(1), 36(2), 36(3), 65(1), 91R. 91S, 422B, 474, 424A, 424A(3)(a) .424A(3)(b).424A(1). 425(1) |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 Chen Xin He v Minister for Immigration & Ethnic Affairs, Federal Court of Australia, RD Nicholson J, 23 November 1995 (unreported) Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth (1998) 197 CLR 510 at 560 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Referred to SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 Attorney General (NSW) v Quin (1990) 170 CLR SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 SZBEL v Minister for Immigration & Indigenous Affairs 23 ALR 592 NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZKTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1805 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 7 December 2007 |
| Date of last submission: | 7 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application filed on 7 June 2007 and the amended application filed on 20 August 2007 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00 payable within 5 months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1805 of 2007
| SZKTA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 1 May 2007 and notified to the applicant by letter dated 22 May 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 26 June 1956 and was aged 48 years at the time of his application for a protection visa.
The applicant claims to be a national of India, of Gujarati ethnicity, and of Hindu faith.
The applicant arrived in Australia on 23 September 2006 on an Indian passport issued in his own name, holding a tourist visa granted on 19 July 2006. He is currently on a bridging visa. The applicant’s wife, who is a British citizen, is also in Australia. The applicant has a son born 12 October 1987 who resides in India and a daughter born 10 May 1983, who is currently studying in Australia.
The applicant lodged an application for a Protection (Class XA) visa on 6 November 2006. In his statement accompanying his protection visa application, the applicant claims that he was targeted and persecuted in India following his being known to have witnessed the setting fire to a Hindu shop and a brutal attack on a Hindu male by Muslim men during the May 2006 riots. He claims these men tried to kill him, but he escaped and went to the hospital for treatment of his injuries. The police would not assist him, so when his family was threatened, he was forced to flee to Mumbai but the men found him there, so he had no choice but to leave India and seek protection in Australia (Court Book (CB) 1-24).
On 25 January 2007 the delegate refused to grant the applicant’s protection visa (CB 49-57) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 8 February 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 58-63).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 9 February 2007 the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments (CB 66-67).
On 2 April 2007 the applicant appeared before the Tribunal, with the assistance of an interpreter.
The applicant’s claims and evidence
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 81). It further summarised the applicant’s evidence and claims at the Tribunal hearing (CB 84-85), which largely reiterated the claims made in his protection visa application that he fears persecution because he witnessed an inter-racial murder and the people responsible are trying to kill him. He claims he has been subject to persecution in the past because of this and fears persecution should he return to India in the future. He claims that the police are unwilling and unable to give him protection (CB 85).
The Tribunal’s findings and reasons (CB 85-87)
The Tribunal found that:
·the applicant’s account of the murder and subsequent response to it by the community and police is “inconsistent, lacking in detail and implausible.” (CB 86)
·it is implausible in the light of country information, that the applicant, a Hindu man who witnessed Muslim men attack and murder another Hindu man, would not be listened to by the police if he reported such an incident.
·it is equally implausible that such an incident would not be reported in the local or even national media, or that the Muslim men responsible would be able to continue to live openly and unhindered in the community if, as the applicant claims, all the people in the village knew (or even believed they knew) that the Muslim men were responsible for the murder of a Hindu man.
The Tribunal was not satisfied that:
·the applicant witnessed a murder, or that he was the victim of any incident as described.
·the applicant has a well-founded fear of persecution for a Convention related, or any other reason should he return to India now or in the reasonably foreseeable future.
·the applicant suffered religious persecution at the hands of Muslims or anyone else in India.
·the applicant reported the alleged incident to police and that police would have failed to respond and not provide him with protection, had he reported such incident.
For the above reasons, the Tribunal did not accept the applicant as a witness of truth. It stated that:
[t]he Tribunal is not satisfied that any of the applicant’s material claims to invoke protection obligations in Australia are true (CB 86).
The Tribunal was therefore not satisfied that the applicant suffered past persecution or that he faces a real chance of being persecuted now or in the foreseeable future if he were to return to India in relation to his race, religion, nationality, political opinion or membership of a particular social group, or any alleged or imputed race, religion, nationality, political opinion or member of a particular social group. It was not satisfied on the evidence before it that the applicant has a well-founded fear of persecution and that he was therefore not a person to whom Australia has protection obligations under the Refugee Convention.
The proceedings before this Court
The applicant filed the application and affidavit in support in this Court on 7 June 2007 setting out three grounds for review of the Tribunal’s decision. The applicant filed an amended application on 20 August 2007 setting out two grounds for review of the Tribunal’s decision.
The applicant appeared in person before this Court on 7 December 2007 with the assistance of an interpreter. Mr Mitchell of counsel appeared for the first respondent. The applicant confirmed that he relied on his amended grounds of application. However, given that the applicant did not have the assistance of legal representation, the Court has addressed any ground in his original application which is not covered in the amended application.
Each of the grounds was translated for the applicant, prior to the Court inviting him to say anything he wished in regard to each ground, and generally.
Grounds of application
The grounds of the application are:
1. The RRT make decision on 1 May 2007. The RRT handed down decision on 22 May 2007.
2. The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
3. I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
James Hathaway 1991 “The law of refugees status “Butterworths Canada) contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.
The applicant feels that the Tribunal did not give weight to the statements made by him in particular harassment
… The member based his whole decision on one sided information prepared for denying the application for the people coming from India.
Ground 1 of the application.
Ground 1 is merely a statement of fact and does not disclose any ground of review.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application.
This ground is not particularised. Without particulars it is difficult to understand the applicant’s assertion in this regard. I detect no error in any incorrect application of the law to the facts which were found by the Tribunal.
In this regard, I accept that the Tribunal properly invited the applicant to attend a Tribunal hearing to give evidence and present arguments; identified the determinative issues arising and gave the applicant the opportunity to respond to those issues pursuant to s425(1) of the Act: (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [33]-[48]); carefully considered the applicant’s claims, including in light of the country information; correctly summarised the relevant law (CB 79–81); and after making certain factual findings in regard to the applicant’s claims and evidence, (in particular that the applicant was not a witness of truth), reached the conclusion, based on the applicable law, that the applicant was not a person to whom Australia owed protection obligations under the Convention and hence did not satisfy the criterion set out in s.36(3) of the Act.
To the extent that this ground seeks that the Court engage in merits review, I adopt my reasoning under ground 3 below in the present context.
Accordingly, for the reasons stated above, Ground 2 of the application is not made out.
Ground 3 of the application.
“I was denied procedural fairness when the Tribunal member did not believe my submissions and oral evidence”
This subground seeks that the Court engage in merits review. It is clearly established and well settled that it is not a function of this Court to interfere in the fact finding role of the Tribunal. The Tribunal’s conclusion that the applicant was not a witness of truth was a finding of fact par excellence: (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: (Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]).
The requirements of procedural fairness (whether in statute or at common law) deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL [at 25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
This limitation on the procedural fairness requirements referred to in SZBEL is consistent with case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
“The Tribunal’s decision is totally contrary to the quote in Professor Hathaway’s text, The Law of Refugee Status, (Butterworths, Canada, 1991) that it should not take an overly stringent approach to questions of credibility. An applicant should not be impugned simply because of vagueness or inconsistency in recounting peripheral details”.
I find no merit in this subground. The Tribunal’s findings were based on its lack of belief of the fundamental tenet of the applicant’s claim that he had witnessed an alleged murder of a Hindu by Muslims and that police had not acted on his complaint and he had been forced to flee his home, and then flee to Australia following persecution by the same Muslim men who wished to kill him. On any view, these matters cannot be construed as “peripheral details” but rather central to his claim.
I also do no detect any “overly stringent approach” by the Tribunal to questions of credibility, as the applicant asserts. The Tribunal’s findings relating to the credibility of the applicant are matters of fact for it to determine and it is not for this court to interfere or substitute its own findings in this regard, as indicated above under ground 2.
I consider that the Tribunal’s findings that the applicant was not a witness of truth was open to it on all the evidence before it and that it performed the task required of it in accordance with law.
“the Tribunal did not give weight to the statements made by him, in particular harassment”.
What weight the Tribunal gives to these matters is ultimately a factual matter for it and it is not for this Court to interfere in this regard: (NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54].
As relevantly observed in Lee v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 464 at [27]):
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
“the member based his whole decision on one-sided information prepared for denying the application for people coming from India”
It is unclear exactly what the applicant is alleging in this regard. If the applicant is alleging bias or pre-judgment on the part of the Tribunal, there are no particulars provided by him to identify the precise nature of what this alleged ‘one-sided information’ is said to be. Further, the applicant has not placed the transcript of the Tribunal hearings before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record.
For the reasons stated above, Ground 3 of the application is not made out.
Amended grounds of Application
The grounds of the amended application are as follows:
1.The purported decision of the Tribunal does not reflect that it was made in good faith and according to the rules of natural justice.
2.The Applicants attended the hearing and gave oral evidence with the department.
The reasoning adopted by the Tribunal was misapplied when the Tribunal member stated “…I consider that relocation on return to India is a viable option for the applicant”.
In Randhawa v MIMIA, Davies I observed that the issue the country of the applicant “is a citizen is not Gujarat but India and the question was whether the applicant was … unwilling to avail himself of the protection of India”.
Again the importance of looking to the protection available from the country of nationality was emphasised by the Supreme Court of Canada in Attorney-General of Canada v Ward. La Forest J held (citing the reasoning of Prof James C Hathaway) that the refugee scheme of “surrogate or substituted protection” is activated upon failure of national protection.
The consideration of the “internal flight principle” was therefore not palpably appreciated by the Tribunal member. I was a citizen not of Gujarat but of India and therefore the option of relocation was not available to me.
This was a constructive failure to exercise jurisdiction in a manner constituting jurisdictional error.
The Applicant’s case is that even if they return to India they will nevertheless fear persecution because of the religious problems. He fears that the Muslim man was trying to kill him.
Particulars:
1.The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, therefore the Tribunal failed to exercise its jurisdiction.
2.The RRT erred in failing to consider all claims and issues put forward by the applicant.
Ground 1 of amended application
The first respondent submits that there is no evidence or basis for the allegation that the Tribunal’s decision was not made in good faith and according to the rules of natural justice. Mr Mitchell submits that the applicant’s claims were not accepted as plausible and were rejected for that reason.
The issue of any alleged bad faith or bias on the part of the Tribunal has already been dealt with under ground 3 of the application. For the same reasons, I reject any suggestion by the applicant that the Tribunal decision was not made in good faith.
The applicant further contends that the rules of natural justice were not properly applied by the Tribunal in his case. However, the applicant is not entitled to common law procedural fairness: s.422B of the Act. The Tribunal invited the applicant to a hearing before it and put the determinative issues arising under the review to the applicant, specifically the plausibility of his claims (CB 84 – 85) and gave him an opportunity to comment thereon. It was not obliged to do anything further under the procedural code of Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
The question of the fairness of the Tribunal’s findings in relation to the applicant’s claims are matters of fact for it and the fairness of its findings should not be reviewed by the Court: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-37, (and see grounds 2 and 3 of the application above).
There is nothing disclosed on the face of the Tribunal decision record to demonstrate that the Tribunal was motivated by factors extraneous to its jurisdiction nor that it did not fairly put the determinative issues arising under the review to the applicant for comment: SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 at [43] ff; SZBEL v Minister for Immigration & Indigenous Affairs 23 ALR 592 at [43]; NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 at [21].
I note that no letter pursuant to s.424A of the Act was sent by the Tribunal to the applicant in this case. Section 424A of the Act, so far as is relevant provides that:
(1) Subject to subsection (2A) and (3), the Tribunal must:
(a) give to the applicant….clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonable practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
I am satisfied, however, that there is no “information” that enlivened the Tribunal’s obligation under the section in the present case. In this regard, it is clear that the word “information”, upon a proper construction, does not extend to the Tribunal's failure to believe the applicant's evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [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 par (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.
It is also the case that the Tribunal was not obliged to put independent country information upon which it relied to the applicant: s.424A(3)(a), nor to put to him information which the applicant himself gave for the purpose of the application for review: s.424A(3)(b), nor to put to him information which the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department: s424A (ba).
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied therefore that the applicant was accorded procedural fairness by the Tribunal as an “essential condition of the exercise of the decision-making power”: Abebe at [113] and in accordance with the statutory framework of the Act.
For these reasons Ground 1 of the amended application is not made.
Ground 2 of amended application
“The reasoning adopted by the Tribunal was misapplied by stating that relocation on return to India was a viable option for the applicant …the consideration of the “internal flight principle” was therefore not palpably appreciated by the Tribunal member. I was a citizen not of Gujarat but of India and therefore the option of relocation was not available to me”.
I reject this assertion. The Tribunal did not make any reference to, nor did it need to make any finding in regard to any relocation of the applicant in India within its finding that his claims were not credible. The issue of relocation therefore simply did not arise and the Tribunal made no finding in this regard.
I accept that the delegate made the following finding on the question of relocation:
Relocation was a viable option for the applicant … in the event that the applicant does not wish to return to their [sic] home area, I consider that relocation on return to India would be a possible option for the application.
It is not however a function of this Court to review the delegate’s finding in this regard.
“The Tribunal member failed to give proper and adequate reasons …”
I accept the first respondent’s submission that the Tribunal is not required to make findings on every factual contention made by the applicant in circumstances where it rejected the central factual premise on which all of his claims rested. I refer to the remarks of the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALD 630 at [47] on this point:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
In this case, the Tribunal rejected the applicant as a witness of truth. As relevantly observed in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
On these bases, I consider that a fair reading of the Tribunal’s Findings and Reasons demonstrate that it provided proper and adequate reasons for its decision in this case.
“The Tribunal failed to consider all the claims and issues put forward by the applicant”
I consider that the Tribunal carefully considered each of the applicant’s claims as is demonstrated by its summary of his claims in his protection visa application (CB 81) and the material referred to in the delegate’s decision which included the applicant’s statement (CB 41–44), the independent information, and the oral evidence given by the applicant at the Tribunal hearing (CB 84 – 85).
As has already been stated under grounds 2 and 3 of the application, merely because the applicant does not accept the findings of fact made by the Tribunal on all the evidence before it, does not amount to an error of law, let alone jurisdictional error.
I consider that the Tribunal’s findings (in particular, that “the applicant’s account of the murder and subsequent response to it by the community and the police is inconsistent, lacking in detail and implausible”), were clearly open to it on all the evidence before it, and that it performed the task required of it in accordance with law (and see Ground 3 of the application above).
Accordingly, Ground 2 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and the amended application before this Court are dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Christine Cargill
Date: 8 February 2008
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