SZLYD v Minister for Immigration and Citizenship
[2008] FMCA 805
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 805 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.424A of the Act – whether the statutory exception s.424A(3)(ba) applies – whether ‘proper, genuine and realistic’ consideration of applicant’s claims and evidence – whether breach of s.36 and s.414 of the Act – whether Tribunal’s reasoning ‘perverse and illogical’ – merits review not function of judicial review – applicant must make out own case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 414, 424A, 474 |
| SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs [2006] HCA 63 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZLYD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 242 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 19 May 2008 |
| Date of Last Submission: | 19 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
| Counsel for the applicant: | Mr J. Young |
| Counsel for the Respondents: | Ms T. Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 4 February 2008 and the amended application filed on 19 May 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,700 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 242 of 2008
| SZLYD |
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) handed down on 8 January 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 2 July 1960. He claims to be a national of Nepal, of Brahmin ethnicity, and of Hindu faith.
The applicant arrived in Australia on 26 April 2007 on a Nepalese passport issued in his own name.
The applicant lodged an application for a protection visa on 28 May 2007 on the basis that (Court Book (CB) 27-29):
·he fears persecution on the basis of his political opinion as he was a former member (at different times) of the All Nepal National Free Student Union (ANNFSU), the Gorkha-National Liberation Front (GNLF/Front) movement, and an active member of the Communist Party of Nepal (United Marxist-Leninist (CPN-UML).
·his fear of persecution was also based on his membership of a particular social group, namely, that he was a teacher-trainer who had provided technical training to health workers in Nepal.
·he claimed that there was no protection available to him in Nepal as the authorities are unwilling or unable to protect him. He claimed that he is on the hit list of the Maoist insurgents and they have proved that they are capable of carrying out their threats. He has grave fears of being killed by the Maoists.
·he sought political asylum in India but was persecuted by Maoists. He returned to Nepal to avoid continuous harassment by the Indian Government. He fears arrest and persecution on false charges if he were to return to India.
·from 1999, the People’s War (PW) demanded donations from him and his School and tried to kidnap him: “It was natural to harass me due to my membership of a Social Group i.e Director of School, Director of Technical School, coordinator of national federation, Active national member of a federation, a party member of a national political party CPN UML”.
·in 2005, Maoists threatened him with death if he did not pay a donation. He informed the police, but in vain. He went to Katmandu and became “half underground”, but Maoists found him.
·following the April 2006 Revolution in Nepal, he again returned home, but was threatened with death. He and his family decided to leave Nepal, but he could not go back to India. In 2006, he was also expelled from his party for expressing pro-Monarchy views. He was completely surrounded by danger because both Maoists and UML were in Government.
·he fears being harmed or persecuted should he go back to India or Nepal because of his political ties.
On 23 August 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 20 September 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
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 5 October 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 7 November 2007 to give oral evidence and present arguments. The applicant attended the Tribunal hearing on that day with the assistance of a Nepali interpreter.
The Tribunal’s findings and reasons (CB 127-132)
The Tribunal found that the applicant’s claims were “essentially a series of vague claims which lack in details” which it was satisfied were not related to any interpreting difficulties but were rather reflections of fabricated claims in an attempt to support his application for a protection visa.
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from the Maoist and UML groups in Nepal. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to Nepal for reasons of being a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 4 February 2008 setting out 3 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 19 May 2008 setting out 4 grounds for review.
Mr Young of counsel appeared for the applicant at the hearing before this Court on 19 May 2008. Ms Wong of counsel appeared for the first respondent.
Grounds of application
Grounds 1, 2 and 3 of the application
These grounds were not pressed by the applicant.
Grounds of amended application
Only the following grounds, A and AA, of the amended application were pressed by the applicant:
A The Second Respondent made jurisdictional error by failing to comply with Section 424A of the Migration Act 1958.
Particulars:
The Second Respondent relied upon a statement provided in support of the application for a protection visa as undermining the claims for protection made by the applicant.
AA The Second Respondents made a jurisdictional error by failing to give a proper, genuine and realistic consideration to the applicant's claims and evidence.
Ground A of the amended application
No letter was sent to the applicant by the Tribunal pursuant to s.424A of the Act in this case. The applicant submits that this was a jurisdictional error on the part of the Tribunal and relies on the High Court decision in SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 [15]-[22] in support of this proposition.
The applicant submits in this regard, (at paragraphs 11-14 of its written submissions), that:
The High Court did not state what was required to engage s.424A but the court appeared to accept [17] that if portions of a statutory declaration submitted in support of a protection visa application contained in their terms a rejection, denial or undermining of the applicants claims, that would engage s.424A.
In this case the RRT relied heavily on the material originally submitted in support of the protection visa application. At CB 130.4 the RRT referred to question 34 of the application for a protection visa and the material supplied in answer to that question. At the bottom of the same page the RRT stated that in his statement in support of the application of a protection visa he did not mention that he was expelled by the party in February 2007.
It is submitted that a fair reading of what the RRT was engaged in indicates that it was seeking to undermine the claims that the applicant was making at hearing by references to his application for protection visa. The issue, it is submitted, is not whether the application for protection visa indicates inconsistencies. It is whether it also, in its terms, has information which is a denial or undermining of the claims.
What the RRT was in effect saying is that the application for a protection visa contained information which undermined his later claims. This, it is submitted, plainly raised s.424A [emphases added].
Section 424A requires a Tribunal, as a matter of procedural fairness, to put to an applicant clear particulars of ‘information’ upon which, subject to the applicant’s comment or response, it would otherwise make an adverse finding.
Subsection 424A(3), however, provides certain statutory exceptions to the Tribunal’s obligation under s.424A. Relevant for the present purposes is s.424A(3)(ba) which came into operation on 29 June 2007.
Subsection 424A(3)(ba) provides that:
(3) This section does not apply to information:
(ba) that 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.
I note first that the High Court decision in SZBYR (handed down on 13 June 2007) was decided prior to the introduction of s.424A(3)(ba). The applicant submits however that s.424A(3)(ba) does not apply to information in the protection visa application, given that the statement by the applicant (CB27) was lodged on 28 May 2007, that is, prior to ss.(3)(ba) coming into operation on 29 June 2007.
The applicant submits therefore that ss.(3)(ba) does not have retrospective operation to apply to the protection visa and accompanying statement, otherwise it would amount to a curtailment of pre-existing rights.
The applicant implicitly concedes that if ss.(3)(ba) does apply, his argument based on SZBYR no longer has any force.
I do not accept the construction put forward by the applicant. The applicant’s rights cannot arise until such time as the application is lodged by the applicant with the Tribunal for review of the delegate’s decision. The application was lodged on 20 September 2007, after the commencement of ss.(3)(ba).
I accept the first respondent’s submission that the provision is clear on its face. The Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (the Explanatory Memorandum), at [74], supports such a construction:
74. This includes, for example, written information provided to the Department by the applicant as part of their visa application (where it is the decision to refuse that application which is under review by the RRT), or in response to a notice of intended visa cancellation (where the subsequent visa cancellation is under view).
Furthermore, the transitional provisions explained in the Explanatory Memorandum at [88]-[89], also clearly support such a construction:
88. Paragraph 33(b) provides that the amendments made by this Act apply to an application for review of an RRT-reviewable decision made under section 412 of the Act which is made after item 33 commences.
89. Clause 2 provides that this Act (which includes item 33) commences on the day after the Act receives the Royal Assent.
I therefore consider that s.424A(3)(ba) applies in this case to exempt the Tribunal from having to put to the applicant for his response or comment information contained in the applicant’s statement accompanying his protection visa application.
Accordingly, Ground A of the amended application is dismissed.
Ground AA of the amended application
The applicant submits that the Tribunal was in jurisdictional error by failing to give a “proper, genuine and realistic” consideration to the applicant’s claims and evidence, contrary to its obligations under s.36 and s.414 of the Act to review the decision. It further submits that the Tribunal reached its conclusions in an illogical and perverse manner.
Mr Young points to the decision of Smith FM in SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 in support of this contention. He submits that His Honour in that case appears to have accepted the principles set out, (albeit, he concedes obiter) by the High Court in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [9]-[10]; [37]; [171]-[172], that jurisdictional error arises where a Tribunal has failed to give a proper, genuine and realistic consideration to an applicant’s claims and evidence.
He submits that Smith FM was persuaded that the Tribunal in SZIAY had not made a genuine attempt to assess the refugee claims, rather it had reviewed the evidence only to look for reasons why the claim could be rejected, and hence had breached its obligations under ss.36 and 414 of the Act.
Similarly in this case, Mr Young points to the Tribunal’s approach of “nitpicking for issues about credibility rather than looking to the substance of the applicant’s claims.” He points in this regard to the following two examples from the Tribunal decision in support of his submission:
·the Tribunal’s approach to answers given by the applicant in relation to the number of arrest warrants issued against him which the Tribunal stated raised serious concerns about his credibility generally.
He submits both that the applicant could never have known how many arrest warrants had been issued against him, only those that he was aware of; and that the Tribunal appeared to have completely ignored the possibility that the applicant may have been truthful in that his vagueness on these matters may have been “in his nature” in that he was suffering from a poor memory to which he alerted the Tribunal.
·the applicant’s uncertainty about dates, such as when the Maoists tried to kidnap him.
Again, Mr Young submits that the Tribunal simply refused to take into account “the fact that some people do not have a memory for dates and that the applicant was stating that upfront and honestly to the RRT rather than trying to guess or invent dates as he went along.” He submits that the applicant put forward his poor memory and his statement that he had great difficulty recalling dates was “a recurring theme throughout the hearing.” He says that the Tribunal “simply brushed this aside and said the lack of details raised doubt about the veracity of his claims and his credibility generally.”
Mr Young submits that:
… it is quite wrong for a Tribunal to … simply look for a number of sign posts to try to pin point vagueness as indicating a lack of credibility on the part of an applicant who stated quite openly and honestly that he did not have a good memory for dates and was apologizing for his vagueness …
and that the Tribunal is bound to at least consider the issue where the applicant has put forward “some matter of physical or mental impairment or difficulty.”
He further argues that:
No-where though does the Tribunal ever consider this - the question of his claims in any way globally …They're described by [the Tribunal] … at [CB] 131 as being in themselves "relatively minor".
But what the Tribunal then does with them is to say that, given its adverse credibility finding, there's not a real chance that he would suffer harm and then for the first time it considers globally the applicant's claim … in my submission, nitpicking matters in relation to aspects of his evidence - "We haven't looked globally at his evidence but, having looked at the matters of nitpicking, we think they impugn his credibility. As a result of that, we reject everything that he's put forward, including, for example, that he was ever even a member of the CPNUML or that he was ever involved in any student politics, that the [Maoists] ever phoned him or threatened him.”
In considering the applicant’s submissions, I first note that the applicant did not put any medical or other evidence before the Tribunal or this Court to support his asserted difficulties in recalling certain aspects of his claims.
Secondly, contrary to the applicant’s submission, I consider that the present case is clearly distinguishable from SZIAY. In SZIAY, Smith FM reached the conclusion, at [60], that:
I have above examined each of the "specific" reasons given by the Tribunal for its opinion that the applicant’s refugee claims were "a fabrication". I identified significant misstatement of the effect of important country information, which I concluded revealed jurisdictional error. I also identified unsupported, unreasonable and capricious adverse conclusions being presented by the Tribunal to justify its decision. I have pointed to significant evidence providing support for the applicant’s claims, which was not rejected by the Tribunal, but which it failed to address. Cumulatively, I consider that the flaws in the Tribunal’s reasoning reveal a decision-maker who has not made a genuine attempt to assess all the evidence, so as to make the determination required under ss.36 and 414 of the Migration Act.
Having carefully considered the present Tribunal decision, I detect no such critical flaws in the Tribunal’s reasoning process and the approach adopted by it which would amount to a failure on its part to undertake a proper, genuine and realistic consideration of the applicant’s claims and evidence.
The Tribunal clearly considered in this regard the applicant’s claim that he was suffering from pressure and stress:
In the course of the hearing the applicant claimed to have been under pressure and stress. On the basis of the available evidence, the Tribunal is not satisfied that the applicant suffers from any condition which the Tribunal needs to take into consideration in assessing his claims (CB 127).
Again, contrary to the applicant’s assertion, I consider that the Tribunal not only considered each of the applicant’s claims and his evidence, but also considered them “globally”, as well as whether the vagueness and lack of details detected in the applicant’s evidence could be attributed to interpreting difficulties, before reaching its adverse conclusion as to the applicant’s credibility:
In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s claims are essentially a series of vague claims which lack in details … However, the Tribunal is of the view that making substantial new claims in the course of the hearing could also raise doubts about an applicant’s credibility and the veracity of the claims … The applicant in the course of the hearing came across as being particularly vague and he was unable to answer very basic questions … The Tribunal conducted a relatively lengthy hearing and the Tribunal is satisfied that the vagueness and lack of details in the applicant’s responses are not related to any interpreting difficulties but are rather reflections of fabricated claims (CB 127)
and at CB 131:
The Tribunal acknowledges that the above noted concerns if viewed in isolation, may be perceived as being minor, however, when they are considered accumulatively, the Tribunal is satisfied that they do impugn the applicant’s credibility. In consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness (and see also CB 131.2, and 131.3).
In its Findings and Reasons, the Tribunal analysed the applicant’s evidence very closely, (which it had set out in some detail earlier in its decision under the Hearing summary), and identified its concerns thereon in a series of dot points (at CB 127-131). The first respondent took the Court to the following five examples in regard to these expressed concerns with the applicant’s evidence:
(1)his vague response in regard to dates as to when student rallies occurred (CB 127).
(2)his lack of details and vagueness as to dates when he delivered speeches against the government political system:
Furthermore, the lack of details in his responses to the Tribunal’s questions about the activities in which he has claimed to be involved, raises doubts about the veracity of his claims and his credibility generally. His explanations that he had explained before in relation to documentary evidence and that he was ready to provide any documentary evidence, are unpersuasive (CB 128).
(3)the vague, general and lack in details about the issue of warrants of arrest.
The Tribunal considers that the lack of details and the vagueness in his responses to questions about a significant issue, raise serious doubts about the veracity of his claims and his credibility generally. His explanations that he was telling the truth and to the best of his knowledge, are unconvincing.
Contrary to the applicant’s submission, I accept that the Tribunal was only seeking answers from the applicant on these matters based on his own knowledge of what he says had happened at the time.
(4)the applicant’s knowledge of the CPN-UML ideologies:
the Tribunal is of the view that the applicant’s responses to the questions about the ideologies of the Party were vague, raising doubts about the veracity of his claims and his credibility generally (CB 129-130).
(5)the People’s War asking for ransom money and the applicant’s evidence that he had escaped harm by moving to different places:
The Tribunal is of the view that it was implausible that he never went out at night for eight years. The Tribunal is of the opinion that his responses about where he lived were vague and lacking in details raising doubts about the veracity of his claims and his credibility generally. His explanations that what he was telling the Tribunal was true and to the best of his knowledge, are unpersuasive (CB 130).
In regard to each of the above five matters, I consider that it was open to the Tribunal to make the findings it did on all the evidence and material before it, and that it cannot be said that in reaching its adverse findings of fact, in particular that the applicant was not a credible witness, (CB 131), that it did not consider, as Mr Young puts it, that the applicant was “vague because he’s vague”. In this regard, as observed by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63 at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.
Furthermore, as stated 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 [emphasis added]. I accept that the Tribunal carefully considered these and the other concerns identified by it before reaching an adverse finding as to the applicant’s credibility.
I accept the submission by the first respondent that the Tribunal adopted a “careful and cautious approach” to its task of fact finding and that there is nothing “illogical or unsatisfactory” in the Tribunal’s approach.
In this regard it is well settled that any want of logic by an administrative decision-maker in drawing an inference of fact does not, per se, constitute an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, Mason CJ said:
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place (emphasis original).
Subsequently, in NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, the Full Federal Court, after quoting the above comments by Mason CJ, concluded, at [30], that:
However want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT's reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.
This conclusion that want of logic does not of itself suffice to constitute an error of law was subsequently quoted with approval by the Full Federal Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [25].
In any event, I consider that the Tribunal’s decision in the present case was based on rational and logical grounds, and did not display any illogicality or unreasoned perversity in its approach or reasoning. The Tribunal closely considered the applicant’s claims in both his protection visa application and in his oral evidence at the Tribunal hearing, and also had regard to “other material available to it from a range of sources” (CB 118). The Tribunal set out its findings on the lack of credibility of the applicant's claims, based on a rational consideration and assessment of all this evidence and material.
I further accept the first respondent’s submission that whilst the concerns identified by the Tribunal in the applicant’s evidence, if viewed in isolation:
may be perceived as minor (see CB 131.1) but that I don’t believe the Tribunal is acknowledging that all of these concerns are minor. It’s trying to take its own observations at their lowest point and then state, when considered altogether, that they demonstrate that the applicant was not a credible witness (transcript 19/5/2008 p 31).
Indeed, in this regard, the Tribunal explicitly stated at four different points in its decision that, for example, the arrest warrants was a “significant issue” which might raise doubts (CB 123.9, 124.2), or raised serious doubts (CB 128.8, 128.9) about the veracity of the applicant’s claims and his credibility generally.
I further accept the submission by the first respondent that the concerns raised by the Tribunal in regard to the applicant’s evidence of his having to flee persecution and live in different places:
go[es] to the very heart of what the applicant was claiming because it's apparent that the applicant was claiming that he had a particular political opinion, that he'd been targeted and that he'd had to leave his home town in order to evade the threat.
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Ex parte Durairajasingham at [67] per McHugh J. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Furthermore, the Tribunal clearly gave the applicant ample opportunity to provide further documentary material, explanations, comments, responses and offered him additional time to do so:
The Tribunal suggested to the applicant that there appears to be a lack of details in his responses to the Tribunal’s questions about many of the activities in which he has claimed to be involved and that the lack of details might raise doubts about the veracity of his claims and his credibility generally. The Tribunal invited the applicant to comment and/or respond. The applicant stated as he had explained before in relation to documentary evidence. He said he was ready to provide any documentary evidence. The Tribunal reiterated the earlier comments about the provision of documents. The Tribunal indicated that it would be up to the applicant to provide any documents that he would like to provide. The Tribunal indicated that it would further consider his explanations, comments and responses (at CB 123) …
At the end of the hearing … the Tribunal indicated to the applicant that he is entitled to seek additional time to comment on, and/or respond to the information that had been discussed in the course of the hearing that the Tribunal considers would be a reason for affirming the decision to refuse a visa. The applicant stated he does not need any more time. He said he told the Tribunal everything truthfully. He thought about whether he wanted to provide any further documents and later decided that he does not need any further time to provide any supporting material (CB 126).
It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
The Tribunal is also not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
If the applicant, as here, choses not to avail himself of further time which was offered by the Tribunal for him to obtain further material, it remains a matter for him. I thus detect no perversity or procedural unfairness on this basis.
In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted his responses. The Tribunal then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
In these circumstances, I reject the applicant’s submission that the Tribunal failed to give a proper, genuine and realistic consideration to the applicant’s claims and evidence, and that it approached the task of drawing conclusions from the evidence and materials before it in an illogical or perverse manner. I thus detect no breach of s.36 and s.414 of the Act and am satisfied that no jurisdictional error arises on these bases.
Accordingly, Ground AA 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 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: Duncan Maconachie
Date: 19 June 2008
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