SZNXD v Minister for Immigration
[2010] FMCA 143
•8 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXD v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 143 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the Tribunal’s discretionary decision not to have documents examined did not amount to a failure to conduct the review or a constructive failure to exercise jurisdiction. |
| Migration Act 1958, ss.36, 65, 91R, 417, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 House v The King (1936) 55 CLR 499 |
| Applicant: | SZNXD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2243 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 February 2010 |
| Date of Last Submission: | 11 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2010 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr H. P. T. Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2243 of 2009
| SZNXD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he was a member of the underground Catholic Church and was targeted by the authorities as a consequence.
The applicant claims to fear persecution in China because of his commitment to the underground church.
Relevantly, the applicant lodged an application for a protection visa on 16 December 2008. This was the second protection visa application which the applicant had lodged. A previous application had been refused in 2005 but in 2008 the applicant was permitted to lodge a second application, which is the application the subject of these proceedings. That application was refused by the delegate of the first respondent (“Minister”) on 30 April 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9, 11 – 21, 27 – 31 of the Tribunal’s decision (Court Book (“CB”) pages 319 – 324, 326 – 336, 342 – 346). Relevant factual allegations are summarised below.
Primary application
In his visa application the applicant made the following claims:
a)he was born in a remote village in Fuqing in China and is a Catholic. His parents were members of an underground church;
b)after graduating from junior high school he worked in a fish farm for three years and then in a factory for two years before he lost his job. He stayed with his parents until 1998 helping them in the fields. During this time he began regularly to attend the underground church with his parents;
c)on the night of 9 April 2000 police raided a Bible study meeting at which the applicant was present. To cover for his father who was also at the meeting, the applicant went forward and tried to stop the police. He was arrested and held in a local police station for twenty-four hours where he was ordered to provide detailed information on his fellow Christians. He was then sent to Fuqing Detention Centre where he was interrogated and tortured in an attempt to induce him to reveal information about fellow church members as well as to “confess” to the crime of practising Catholicism. During the interrogation he was bashed and tortured for three days;
d)on 9 May 2000 the applicant was released after he signed a parole document. He was also fined RMB 5000. Following his release he was hospitalised for over two months but left before completely recovering as he did not have enough money to stay in hospital;
e)as he had not fully recovered from his injuries, he did not report to the police as required under the conditions of his parole. The police would visit his home and threaten that if he did not report to them they would arrest him again;
f)he spent half a year in hiding at the home of a church leader (“Brother”) in Lianjian County and attended a local underground church there. On 17 March 2003 the church was raided by the police but everyone present managed to escape;
g)
in April 2005 the applicant was given a false Chinese passport and a visa for Indonesia and was advised to travel to Japan, which he did. Whilst in Tokyo the applicant was given a Japanese passport with an Australian visa. He arrived in Australia on
7 April 2005 under the false identity of a Japanese national;
h)after arriving in Australia, the applicant was advised by people who were from the same region in China to apply for a protection visa and he was introduced to a migration agent. At the first meeting with the agent, the applicant gave the true story of his life in China and explained that his Japanese identity was false. The agent completed a protection visa application in front of the applicant who was made to sign the form in Japanese. As he could not read English, the applicant did not know what was written in it. He paid the agent and was promised that “everything would be taken care of”;
i)when his migration agent advised him that his protection visa application was not successful at the Tribunal he was not given reasons. The agent asked the applicant if he wanted to “appeal” to this Court and whilst the applicant was not told what this would entail he knew that he would need to “appeal” if he was to have any chance of remaining in Australia. After he agreed to lodge an “appeal” and after paying his agent some money he never heard from the agent again; and
j)the agent had authorisation to receive all correspondence. The applicant only became aware of the Tribunal’s 2005 hearing invitation and the refusal of his application upon his subsequent detention. He also became aware that the application which the migration agent had lodged contained false information.
On 3 March 2009 the applicant attended an interview with the Minister’s delegate where he made the following claims:
a)he could not use his own passport to enter Australia as the Chinese government had issued a warrant for his arrest;
b)he lived at one address from birth until 2001 and then moved to live with his grandmother until 2002. He went to Putian until 2003 and he then moved to Jiangsi province until March 2005;
c)he attended Catholic Mass every Christmas in China. He last attended a Catholic Mass in China in 1999;
d)he first attended church in Australia in September after he “got out”. He attends the same church every Sunday and goes to confession and fasts for forty days; and
e)it took him a number of years to leave China because he was living in the village and did not know much about the outside world. When he lived in Jiangsi he met a friend who told him that he could help him to go overseas for protection.
Included with the application were the following documents:
a)a translation of a summons issued on 13 August 2007 stating that the applicant was alleged to have participated in illegal underground church assemblies; and
b)a translation of a certificate of baptism dated October 1978.
Review application
On 12 June 2009 the Tribunal wrote to the applicant pursuant to
s.424A of the Act inviting his comments on the information that it considered might be the reason or part of the reason for affirming the decision under review. The Tribunal referred to the applicant’s migration history including delays in his application for protection. This was said to be relevant as it might indicate that he did not have a genuine fear of persecution in China. The Tribunal also referred to some of the applicant’s evidence at his interview with the delegate, which was said to be relevant to the assessment of his credibility.
On 6 July 2009 the Tribunal received the applicant’s response stating that the applicant’s health issues had affected his memory and his ability to recount his experiences and provide information.
At the Tribunal hearing on 7 and 9 July 2009 the applicant made the following additional claims:
a)the original of the summons was in China;
b)he lived in Fuqing until 2002. Because he joined the underground church and the government wanted to arrest him, he went into hiding and escaped to Lianjian where he stayed for half a year. He then moved to Putian;
c)he knew of the refusal of his first visa application by the Tribunal prior to his detention in April 2007. He later stated that he did not know about this refusal;
d)the reason why he had not applied for a protection visa between April 2007, when he was detained, and December 2007, when he suffered an injury which allegedly affected his memory, was because he was in Stage I of the detention centre and did not know about the procedures and his application until he was transferred to Stage III (around August 2007) where he had contact with his lawyer;
e)he found out about the summons in 2008 following a phone conversation with his family. It took his family so many months to inform him about the summons because they did not want to worry him;
f)when he was detained the Australian government approached the Chinese consulate to check his identity and he was found out by the Chinese government. That is why the summons was issued;
g)it took him until 1998 to join the church because before that he attended school and studied and after graduation he was working for a few years to support the family. As a child he always went with his parents to church but he was too young to understand religion. In 1998 he was unemployed and stayed at home and his parents wanted him to attend church. He attended his village church gatherings every day and attended Mass every week;
h)after he was released from police detention in China he lived at his grandmother’s home in another village for a period of time before returning to his home village in January 2001. He later stated that when the government wanted to tighten control he would escape and go into hiding in other places, travelling between his home and his grandmother’s home until 2002. He returned home in secret until the end of 2002 and after that he did not return because the control in his village was very tight;
i)in 2002 the government came to the applicant’s family and threatened that he would be arrested if he did not report;
j)when the PSB raided the church gathering in March 2003 the members of the congregation escaped out the back door to the mountain. They returned from the top of the mountain and took a bus to Putian;
k)he did not attend church in Australia until 2008 because he did not know English and, because of what had happened in China, did not dare to find a church. He did not dare to go to church as he was afraid to go to a public church. Prior to this he prayed and read the Bible at home and performed the Mass himself; and
l)he does not have a deep understanding of the Bible and does not know if the way he prayed when he prayed in private was correct.
The applicant presented the Tribunal with the following documents:
a)a psychological assessment report from a Ms Conroy; and
b)statements of support from a Father McGee of the Columbian Mission Institute, a Ms Woo of Hillsong and the Australian Red Cross.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)having considered all the medical evidence and other materials before it, as well as the applicant’s own evidence, the Tribunal was satisfied that the applicant had been given a genuine opportunity to give evidence and present arguments at the hearing, noting the following:
i)the applicant appeared to have no difficulty understanding the Tribunal’s questions and communicating his answers and his answers appeared to be both responsive and meaningful;
ii)the hearing proceeded with several adjournments; and
iii)the applicant had the assistance of his migration agent and other support persons throughout the hearing;
b)the Tribunal expressed concern about the applicant’s failure to pursue his judicial review rights following the failure of his first Tribunal review (in December 2005) and the fact that he took no other steps to press his claim for protection until after he was detained in 2007. The Tribunal noted that the applicant gave inconsistent evidence regarding when he learnt of the failure of his first Tribunal review application. The Tribunal also found that the applicant was aware long before his detention that his first application for a protection visa had been unsuccessful;
c)the Tribunal concluded that the applicant’s failure to inquire about the progress of his application for a number of years did not appear to be the conduct of a person who was interested in the progress of his protection visa application or genuinely fearful of being returned to a country where he thought he would be persecuted. This conduct caused the Tribunal to reject the applicant’s claim that he was fearful of persecution in China and that he travelled to Australia to avoid such persecution;
d)the Tribunal then set out a number of other concerns to support its finding that the applicant had been untruthful in his evidence and was not fearful of persecution in China, namely:
i)the applicant’s motivation in joining the church in 1998 appeared to be the result of free time and pressure from parents rather than any commitment on his part or any interest in the church and its teachings;
ii)he gave inconsistent evidence in the interview with the delegate and at the Tribunal hearing regarding his attendance at Catholic Mass;
iii)he gave confused evidence about his contact with the authorities after his release from detention in May 2000;
iv)the applicant failed to refer in his visa application to his lengthy hiding at his grandmother’s home and his secret visits to his own home;
v)in China the practice of Catholicism is not a crime and the Catholic Church is officially recognised. The Tribunal took the applicant’s lack of awareness of such facts to indicate a lack of participation in Catholicism which was inconsistent with his claim to have been brought up in a religious family and to have participated in the activities of an unregistered church;
vi)the applicant’s claims in respect of the 2003 raid were considered by the Tribunal to be implausible; and
vii)he displayed limited knowledge about some aspects of Catholicism. The Tribunal considered this to be inconsistent with his claimed involvement with religion;
e)with respect to the summons issued in August 2007, the Tribunal expressed the following concerns:
i)the applicant could not explain to the satisfaction of the Tribunal why a summons would be issued requiring him to attend the Fuqing PSB in August 2007, two days after the date when the summons was issued, if the Chinese authorities were aware that he was in Australia and could not have attended; and
ii)it was unclear why the applicant would be summonsed in 2007 for alleged participation in an illegal underground church assembly given that he had not lived in China for several years, his church participation in 2000 was already known to the authorities and the authorities were not aware of his subsequent participation, he having escaped the 2003 raid;
f)the Tribunal did not consider the statements from third parties to constitute probative evidence supporting the applicant’s claims about the events in China and gave them no weight because they were presented in English with no originals and, while some had ID cards attached, there were no contact details which denied the Tribunal the opportunity to test the evidence;
g)having regard to its stated concerns about the evidence, the information before it concerning the widespread availability of fraudulent documents including summonses and the fact that the Tribunal found the applicant to have been untruthful in his evidence, the Tribunal did not believe the summons or the applicant’s baptism certificate were genuine documents or that the applicant had been baptised at birth;
h)for these reasons, the Tribunal rejected the factual allegations advanced by the applicant in support of his claim to fear persecution by reason of his claimed religious activities. Indeed, the Tribunal found that the applicant had no interest in, and no commitment to, the Catholic church or any unregistered church in China;
i)nor did the Tribunal accept the applicant’s claims that he might be persecuted because the Chinese Consulate had been approached by the Australian authorities or because he left China using a false passport because:
i)there was nothing to suggest that in contacting the Chinese Consulate the Australian authorities had disclosed the fact that the applicant was seeking protection in Australia or that the Australian authorities had informed the Consulate of the nature of the applicant’s conduct in Australia including his religious conduct;
ii)there was nothing to indicate that mere departure from China would cause the authorities to punish the applicant;
iii)departure on a false passport did not necessarily indicate that he had sought protection in Australia; and
iv)if the applicant were to experience any harm as a result of his departure on a false passport the Tribunal did not consider that any Convention reason would be an essential and significant reason for such harm;
j)in relation to the applicant’s claim that he may face risk of persecution as a result of his medical condition if he were to disclose that he sustained injuries during detention whilst applying for the protection visa, the Tribunal stated that it was unlikely that the authorities would be aware that if the applicant was detained in Australia then that detention was associated with an application for a protection visa given that any person who is found to be an unlawful non-citizen is subject to detention provisions;
k)the statement from Ms Woo and the psychological report prepared by Ms Conroy did not provide independent confirmation of the events in China and they also contained information inconsistent with the applicant’s claims. The Tribunal did not accept that these documents accurately represented the applicant’s religious activities in China;
l)having found that the applicant had no involvement or interest in the church in China, the Tribunal was not satisfied that the applicant had engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee and it disregarded such activities pursuant to s.91R(3) of the Act;
m)the Tribunal found that the applicant would not engage in activities of the Catholic Church or of any unregistered church if he returned to China;
n)as the applicant’s wife was unsuccessful in her application to the Tribunal for review of the refusal of her protection visa application, the applicant was not entitled to such a visa pursuant to s.36(2)(b) of the Act as the spouse of a person entitled to a protection visa; and
o)as the Tribunal did not accept that the applicant would engage in the activities of an unregistered church in China, it rejected his claim that, in his circumstances, the denial of a right to practise his religion, or other rights particularised in his submissions to the Tribunal, amounted to persecution or that there was a real chance that he could be persecuted for these reasons in the future.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)One of the Tribunal’s finding is that the husband applicant’s lack of action after he was informed by his then migration agent (first protection application) indicates that he was not fearing persecution. Otherwise he would have taken action promptly in dealing with his protection visa application. In reaching this finding the Tribunal assumed that the husband applicant should have known when his migration status had become illegal. However the evidence of the husband applicant shows that although he was informed by his then migration agent about the RRT’s decision (2006) and the agent’s intention to appealing with court on his behalf, the husband applicant had never received any notice about court appealing and court’s decision. The Tribunal’s assumption that the husband applicant should have realised his illegal migration status is not supported by any evidence provided and consequently the Tribunal made a jurisdictional error.
(2)The Tribunal stated “DIAC would have given advice that he could write to the Minister as soon as he arrived in Villawood” and based on this assumption the Tribunal again denied the husband’s fear of persecution is real due to his lack action after he was detained by the Department of Immigration. In this finding the Tribunal failed to take into account relevant evidence provided. First, one of the husband applicant’s support letter (written by Ms J Thompson) clearly shows that he approached the “Balmain for Refugee” (refugee advocate organisation) seeking assistance soon after he was put in Villawood Immigration Detention Centre. Second, the support letter also explains that during the preparation of the letter to the Minister the husband applicant was seriously injured in the detention centre and the preparation was disturbed. This is supported by the husband applicant’s support letters and relevant medical documentations. The Tribunal erred as it disregarded relevant evidences and denied the husband applicant’s effort in dealing with his protection application and then his fear of persecution. Therefore the Tribunal again made a jurisdictional error.
(3)The Tribunal failed to take into account and put any weight on a summons issued by Chinese Police which is one of the husband applicant’s key evidence in relation to his persecution background. The Tribunal refused to forward the document to the Document Authentication Team for verification and simply claimed that the document could either be fraudulent or issued by a corrupted official. By doing so the Tribunal denied the husband applicant’s right to corroborate his claim based on his documentary evidence and therefore made a jurisdictional error.
At the hearing of these proceedings the applicant also submitted that although he mentioned to the Tribunal the injuries which he said he suffered in police detention in China, the Tribunal was not interested in looking at those injuries which his body allegedly still displays.
The applicant also submitted that there was insufficient evidence available to the Tribunal to conclude that he was not a Catholic as he alleged.
Finding was unsupported by evidence
The essence of the first allegation is found in its final sentence:
The Tribunal’s assumption that the husband applicant should have realised his illegal migration status is not supported by any evidence provided and consequently the Tribunal made a jurisdictional error.
The evidence touching on the applicant’s awareness of his migration status following his first protection visa application was relevantly discussed by the Tribunal at paras.141-142 of its decision. Far from “assuming” that the applicant was aware of his migration status, the Tribunal specifically referred to the applicant’s evidence that his migration agent had told him of the Tribunal’s decision on his review application and had advised him that an “appeal” could be made to this Court. Further, the Tribunal records the applicant’s contemporaneous recognition that he would have to bring proceedings in this Court were he to have any chance of remaining in Australia. The Tribunal rejected the applicant’s alternative allegation that he did not know about the Tribunal’s decision until he was in detention, saying:
The Tribunal thus finds that the applicant was aware at the time of … [paying additional fees to his agent to seek judicial review and possibly signing the initiating application], long before his detention, that his application for the protection visa was unsuccessful.
A finding of jurisdictional error could only be made in the context of this allegation if the Tribunal’s conclusion was based on a finding unsupported by any evidence concerning what the applicant knew or, in the applicant’s words, “should have known” about his migration status. However, the Tribunal made clear findings concerning the applicant’s knowledge of the outcome of his first visa application, findings which were sufficiently supported by the evidence.
For these reasons, the first ground alleged is not made out.
Finding contrary to the evidence
The essence of the second allegation is that the Tribunal rejected the applicant’s claim to fear persecution because of his inaction after he was detained, in circumstances where the Minister’s department would have advised him, upon his detention, that he could make representations to the Minister pursuant to s.417 of the Act.
This allegation misconceives the Tribunal’s conclusions. The essence of this part of the Tribunal’s decision lies in the following passage found in para.143:
… the Tribunal is of the view that the applicant’s failure to inquire about the progress of his application for a number of years does not appear to be the conduct of a person who was interested in the progress of his protection visa application or genuinely fearful of being returned to a country where he thought he would be persecuted. The applicant’s conduct causes the Tribunal to reject the applicants’ claim that he was fearful of persecution in China and that he travelled to Australia to avoid such persecution. This Tribunal does not accept that the applicant was fearful of persecution in China and rejects the applicant’s claim that he did experience serious harm in China before his departure from that country.
As is apparent from that passage, the Tribunal’s concern was not with the applicant’s failure to take steps once he was taken into detention but with a long term lack of interest in the outcome of his visa application, a lack of interest which pre-dated his detention.
The applicant also appears to allege that the Tribunal did not take into account evidence that he had sought the Minister’s intervention under s.417 or other evidence concerning why the preparation of that request was delayed. However, the evidence in question was expressly discussed by the Tribunal in para.143 of its decision where it said:
The Tribunal acknowledges that evidence [concerning the preparation of the applicant’s application for Ministerial intervention], however the Tribunal’s concerns are with the applicant’s failure to take steps with respect to his application prior to his detention.
For these reasons, the second allegation in the application does not demonstrate jurisdictional error on the part of the Tribunal.
Summons from Chinese police
The third allegation is composed of three parts:
a)the Tribunal failed to take the summons issued by the Chinese police into account;
b)the Tribunal failed to give adequate weight to the summons; and
c)the Tribunal refused to have the document expertly examined to determine its authenticity.
As to the first point, contrary to the applicant’s allegation the Tribunal did consider the summons from the Chinese police. It was expressly discussed by the Tribunal in paras.146, 148 and 149 of its decision. Consequently, this aspect of the allegation fails on the facts.
As to the second point, the weight to be accorded to any evidence before the Tribunal is a matter solely for the Tribunal. The Court cannot substitute its own views of the evidence for those of the Tribunal. For that reason, this element of the third allegation discloses no jurisdictional error on the Tribunal’s part.
As to the third point, although the Tribunal had power to send the summons to be examined, that decision was a discretionary one. To succeed in this aspect of the third allegation, on the assumption that a miscarriage of this discretion can lead to a conclusion that the Tribunal’s decision is affected by jurisdictional error: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25], it is necessary for the applicant to demonstrate that the exercise of the discretion miscarried. In House v The King (1936) 55 CLR 499 it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. (at 504-505 per Dixon, Evatt and McTiernan JJ)
In this case the Tribunal reached its discretionary decision by having regard to information indicating that there was a high incidence of fraudulent documentation in China. In that context the Tribunal decided not to accede to the applicant’s request to have the document verified because the information which the Tribunal cited suggested that such documents could be obtained through corrupt officials. The Tribunal observed at para.149 of its decision record that although the document itself might appear to be a genuine document it could have been issued by a corrupt official in which case any enquiries through the departmental document examination unit would not add or assist the applicant and would not overcome the problems presented by the Tribunal’s conclusion that the applicant had been untruthful in his evidence.
Consequently, I do not conclude that the Tribunal’s exercise of discretion, in not referring the document for expert investigation, miscarried.
Moreover, in circumstances where the applicant’s evidence was found by the Tribunal to lack credibility and the Tribunal considered that a corrupt official might have issued a document which would otherwise appear to be genuine, its exercise of discretion does not disclose a failure to conduct the review it was obliged to undertake and thus jurisdictional error by reason of a constructive failure to exercise jurisdiction.
Inspection of injuries
Turning to the first of the additional allegations raised at the hearing in these proceedings, the Tribunal’s decision does not record the applicant having invited the Tribunal to inspect his injuries. Any lack of interest on the Tribunal’s part in inspecting the injuries which the applicant says his body displays does not disclose jurisdictional error. As already considered in the context of the alleged police summons, a decision to inspect those injuries was a discretionary one. It must be recalled that the applicant’s essential claims were comprehensively disbelieved by the Tribunal. In that context it must also be acknowledged that evidence of injuries would not, of itself, prove the applicant’s claim to have been mistreated while in police custody. It could have been no more than corroborative of that allegation.
In those circumstances, no miscarriage of discretion has been proved. Nor has it been demonstrated that study of the injuries allegedly displayed by the applicant’s body was so essential to the Tribunal’s review that any failure to perform it amounted to a failure to exercise jurisdiction.
Applicant’s Catholicism
The applicant’s final submission was to the effect that his ignorance of aspects of Catholic belief did not prove that he was not a Catholic and that even devout Catholics would not necessarily know every detail of their denomination’s beliefs. While these submissions are true enough, they do not address the fact that the Tribunal analysed the evidence before it and failed to be satisfied that the applicant was the committed Catholic he claimed to be. The Tribunal is not in the position of contradictor of the applicant’s claims and thus did not need to be possessed of information which disproved his claims. Rather, it was incumbent upon the applicant to advance evidence and arguments sufficient that the Tribunal was satisfied that he met the criteria for a protection visa. The applicant’s evidence and arguments failed to satisfy the Tribunal of this which had the result under s.65 of the Act that the Tribunal had no option but to affirm the delegate’s decision.
This ground also appears to invite the Court to review the Tribunal’s factual conclusions concerning the applicant’s claim and its conclusion on the merits of that claim. The Court may not do this, its role being limited to reviewing whether the Tribunal correctly applied the law in the conduct and its determination of its review.
For these reasons, this submission by the applicant at the hearing does not indicate a basis upon which the Tribunal’s decision should be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 March 2010
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