SZQQI v Minister for Immigration & Anor
[2012] FMCA 221
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 221 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – provision of legal advice – allegation of bias on part of the Tribunal – request for impermissible merits review – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 425, 425A, 426, 426A, 441A, 441C, 476 Migration Regulations 1994 (Cth), r.4.35D Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQQI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2069 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 March 2012 |
| Date of Last Submission: | 15 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 14 September 2011 is dismissed.
The applicant pay the first respondent’s costs, set in the amount of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2069 of 2011
| SZQQI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 September 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 10 August 2011, to affirm the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of Nepal. He arrived in Australia on 8 September 2009 (on what he subsequently claimed to be a “bogus” passport). He applied for a protection visa on 21 July 2012 (Court Book – “CB” – CB 1 to CB 35 with annexures).
Claims to Protection
The applicant’s claims to protection were set out in a Statutory Declaration annexed to his protection visa application (CB 34 to CB 35).
He claimed to be a royalist member of the Rastriya Prajatantra Party (“RPP”), a right-wing, pro-monarchy party. He was influenced in his political opinion by a friend’s father, who was a local politician who was pro-monarchist. He claimed that on 7 July 2009 he staged a procession celebrating the former King’s birthday. A local villager told the Maoists and they came to attack him, however he had left before the Maoists arrived. The Maoists did capture another member of the RPP who had joined the celebrations. The applicant believed that this person was either forced to join the Maoists, or was killed.
The applicant also claimed that he was known to the Maoists for his strong opposition to their ideology, and that they had threatened to kill him while he remained in his home district.
He claimed that relocation within Nepal was not “an effective option” as the Maoists have networks across Nepal and India, and he would not be able to access reasonable state protection.
The Delegate
The delegate first considered whether the applicant, as a citizen of Nepal, had a right to enter and reside in India. The delegate noted that the balance of judicial opinion “… has been that the 1950 Treaty of Peace and Friendship does not afford citizens of Nepal a legally enforceable right to enter Nepal [sic] and that, as such, the treaty is insufficient to exclude Australia’s obligations under the Refugee Convention…”, and so accepted that Nepalese citizens do not have a legally enforceable right to enter India (CB 68).
The delegate had concerns “about the overall credibility” of the applicant (CB 69), but was “willing to accept” the applicant’s claim to have been involved in RPP pro-monarchist activities, and to have been threatened by local Maoists in 2009 (CB 70). Nevertheless, he did not accept that the applicant would not be able to avoid serious harm from the Myagdi Maoists by relocating to Kathmandu (CB 70). He found that the security situation in Kathmandu was “satisfactory” and that pro-monarchist groups were “operating without complication” (CB 71). The delegate found the chance that the applicant might suffer serious harm from Maoist activists to be “remote”, and that his claim to fear harm was not well-founded (CB 71).
The Tribunal
The applicant applied for review to the Tribunal on 6 May 2011 (CB 73 to CB 76. He was invited to, and ultimately attended, a hearing before the Tribunal on 8 July 2011 (CB 86, CB 93). The Tribunal’s account of the hearing appears in its decision record (albeit under the somewhat misleading heading of “Consideration of the applicant’s claims” ([28] at CB 108 to [32] at CB 109).
The Tribunal found that the applicant’s claimed fear of harm either did not fall within the definition of persecution as it did not amount to “serious harm” (with obvious reference to s.91R of the Act), or was not well-founded because there was no real chance he would be persecuted on the basis advanced (see [45] at CB 112, and with probable reference to Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406 - 407, Dawson J at 396 – 398, McHugh at 428 – 429, noting that Gaudron J did not adopt the “real chance” test).
The Tribunal’s conclusion was informed by the acceptance of some of the applicant’s claims. That is, that the applicant had been a member of the RPP, a supporter of the monarchy and anti-Maoist. However, even in these circumstances, the Tribunal found that the applicant had never been harmed by the Maoists. Their call for him to leave the RPP and to stop supporting the monarchy was found not to amount to serious harm for the purposes of the Convention definition of “persecution” as expanded by s.91R of the Act.
The Tribunal also found there was no “real chance” that the applicant would be abducted and killed by the Maoists on his return to Nepal. The Tribunal relied on the applicant’s own evidence that they had not done so on at least five earlier occasions when he had organised events in support of, and in celebration of, the monarchy. It rejected the applicant’s factual claim that one of his friends had been killed by the Maoists as “mere speculation” ([48] at CB 113).
Country information before the Tribunal indicated that the Maoists had used intimidation and violence in the past, but that such incidents had significantly decreased since the 2008 election that brought the Maoists to power. Rather, the Maoist government’s treatment of political opponents involved only isolated incidents of violence.
The Tribunal found that although the applicant had been openly and actively involved in the RPP, and pro-monarchy activities, he had suffered no violence or persecution. In light of this and the country information, it found that the applicant’s fear of persecution for reason of political opinion was not well founded. In reaching its conclusion, the Tribunal specifically noted that, in light of the above, it was not necessary to make any findings as to how the applicant obtained funds to come to Australia, or the delay in applying for a protection visa.
The Application to the Court
The application to the Court contains the following grounds:
“1. I argue that the Tribunal Member did not take into account of all aspects of my claim as I believe the Tribunal member did not use all the means at his disposal to produce the substantial evidence in terms of my fear on return to Nepal. The Tribunal Member deprived me of natural justice.
2. I believe that the Tribunal member’s decision was made intentionally and negligently which caused me not getting my natural justice. I argue that it is more than illogical to think that my involvement with the RPP and my support for the Monarchy would not put me at risk of being seriously harmed or killed by the Maoists is an irrelevant consideration.
3. The Tribunal Member failed to exercise its jurisdiction by failing to consider and make finding in respect of my claims as it did not address the question of whether a person in my position was able to obtain effective protection from the authorities in my country. I am a victim of the Maoists.
4. The Tribunal accepted that I was a member of the RPP whereas the Maoists YCL had a policy of attacking their opponents and I am opposed to them. The fact is that Maoists and Maoists YCL are very influential in my country and they persecute their opponents. The Tribunal Member ignored and failed to deal with my claims. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.
5. It is contended that jurisdictional error is evident in the way in which the Tribunal Member ignored or failed to make a proper genuine and realistic assessment of the real risk of serious harm that I will suffer from the Maoists and Maoist YCL due to my denial to join and support them and my political or imputed political opinion upon my return to my country in the light of the country information. I was forced to flee Nepal in search of protection because it was inevitable that I would be harmed or killed by the Maoists because of my political opinion and my denial to support them. “
Before the Court
Before the Court the applicant appeared in person. He was assisted by an interpreter in the Nepalese language. Mr H P T Bevan of counsel appeared for the first respondent.
I cannot help but note that the applicant’s grounds are strikingly similar in wording to grounds advanced recently in two other matters involving Nepalese citizens who applied for protection visas in Australia, and arose from claims bearing a similar factual basis (see SZQNL v Minister for Immigration & Citizenship & Anor [2012] FMCA 86 (“SZQNL”) at [20] and SZQNM (SYG 1783 of 2011), which was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth)).
As I found in SZQNL, the grounds as stated, and with reference to the circumstances in the current case, reflect the applicant’s disagreement with the Tribunal’s decision, rather than any real attempt to assert jurisdictional error.
In the current case, as with the other two matters, at the first Court date the applicant explained that a “friend” assisted in the drafting of the grounds now put before the Court.
The applicant was assigned a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. The lawyer, respected counsel who often appears in matters of this type, has certified that advice was sent to the applicant, although no meeting took place with him. This is explained by the notation on the certificate: “No response to letters, did not answer or return call.”
At the first Court date I had stressed to the applicant, given the nature of the grounds of the application as drafted, the importance for the presentation of his case of attending to the panel lawyer assigned under the “RRT Legal Advice Scheme” to provide advice to him.
The applicant could give no explanation for his failure to consult with the panel lawyer, but did volunteer that he had spoken to his (“my”) lawyer. When asked who this lawyer was he advised that it was a Mr “Billy Pun”. He then said he was not sure if he was a lawyer, but that he had helped him.
The applicant subsequently confirmed that this person had assisted in the interpretation of his application for a protection visa. (See the “Interpreters Declaration” at CB 24: “Dilip Jang Pun” of 414/27 Park Street, Sydney.)
While before the Court the applicant said he was unsure as to whether Mr Pun was a lawyer, in his application for a protection visa, the applicant was able to declare (at CB 23) that Mr Pun was not a migration agent (Item 14 at CB 22). Yet he declared that Mr Pun had assisted with the completion of the application form (Item 14 at CB 22), as well as having interpreted the contents of the application form and the applicant’s responses to the questions posed (CB 24).
The Court’s concern was that the applicant had relied on a person who was not a lawyer to submit a “formulaic” (for Nepali citizens claiming refugee status) application to the Court in which it was difficult to discern any proper assertion of jurisdictional error.
Ultimately, the applicant’s election to rely on the advice of a person who was not a lawyer in the preparation and prosecution of his case before the Court, and to ignore the opportunity to obtain competent legal advice, in this case from a respected counsel experienced in this area of law, is a matter for the applicant.
As to Mr Pun, he had initially been “booked” to assist as an interpreter in the current proceeding. As it turned out, a different interpreter was used for the hearing before the Court. I am mindful that the applicant’s comments to the Court alleging Mr Pun’s involvement in the preparation and submissions of his grounds were not given in any evidentiary context. Nevertheless, given the striking similarity between the terms of the grounds of this application and those in the cases referred to above, and the applicant’s statements (albeit not in an evidentiary context), I ask the Minister’s department to investigate whether the alleged conduct of Mr Pun requires further action in relation to the giving of migration advice by a person not registered to do so, and whether referral to the Law Society of New South Wales in relation to the giving of legal advice by an unqualified person is appropriate.
I also ask the Registrar of the Court to ensure that, where interpreters are provided for migration proceedings before the Court, interpreters who have assisted in the preparation of an applicant’s visa application and supporting documents, beyond providing interpreting services, are not engaged to provide interpreting services in those same cases before the Court.
Consideration of the Grounds
Putting all of this to one side, the application to the Court should be dismissed. Even reading into the grounds the best possible case for the applicant does not lead to any revelation of jurisdictional error on the part of the Tribunal. Nor did the applicant’s statements to the Court, taken at their highest, rise above a challenge to the facts as found by the Tribunal and do other than quarrel with the Tribunal’s conclusion. In short, the applicant asked for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”)). No amount of explanation from the Court as to the respective role and powers of the Tribunal and the Court (both at the first Court date and at the hearing) deterred the applicant from pressing alleged errors in the merits of the Tribunal’s decision, rather than matters that could lead to any revelation of jurisdictional error.
Ground One
At best there are three elements to ground one.
First, the applicant complains that the Tribunal did not take into account or consider all aspects of his claims.
Any such failure may lead to jurisdiction error. The Tribunal is obliged to deal with any claim expressly made or which clearly arises from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”)). The applicant however has not provided any particularity to this assertion. Nor has he said what aspects of his claims were not taken into account.
The applicant’s claims were set out initially (albeit briefly) in his protection visa application, a statutory declaration (CB 34 to CB 35) and then in what he told the Tribunal at the hearing ([28] at CB 108 to [37] at CB 109). The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred. For that matter he said nothing to the Court to infer that the Tribunal’s account was inaccurate.
Any plain reading of this material, and the Tribunal’s decision record, reveals that the Tribunal understood the nature and extent of the applicant’s claims and took them into account in the sense of considering them (see in particular [24] at CB 106 to [26] at CB 107 and [42] at CB 112).
The second complaint is that the Tribunal: “… did not use all the means at [its] disposal to produce substantial evidence”.
To the extent that this may infer some failure by the Tribunal to conduct some inquiry to obtain further evidence in support of the applicant’s claims then, as Mr Bevan submitted, it is for the applicant to provide the evidence to make out his case. There is no duty on the Tribunal to make his case out for him. The Tribunal’s obligation is to consider the material before it, make probative findings of fact, and then consider whether it can reach the requisite level of satisfaction such that the protection visa must be granted (s.65 and s.36(2) of the Act, see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Further, there is no general duty on the Tribunal to make inquiries or obtain further evidence (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12). Nor do the circumstances of this case give rise to “an obvious inquiry about a critical fact” (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429).
Third, the application made the bald assertion that the applicant was deprived of natural justice. No particulars or explanation was provided by the applicant.
This is a case to which s. 422B of the Act applies, making the matters set out in Div. 4 of Pt. 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to matters dealt with in that division (Saeedv Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204)
In this light, the applicant was invited to a hearing pursuant to s.425 of the Act. The invitation complied with all the relevant statutory and regulatory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The Tribunal’s unchallenged account of what occurred at the hearing reveals that the issue dispositive of the review was raised at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592). While the Tribunal accepted some of the applicant’s factual claims, it was not satisfied that these claims amounted to a well-founded fear of persecution (“serious harm”) on return to Nepal (see in particular [32] and [33] at CB 109). This also arose as a result of the delegate’s decision (CB 71).
In all, ground one is not only not made out, it is devoid of any such merit as to even reveal some reasonable basis for its articulation.
Ground Two
Ground two suffers from the same ill as ground one. As I said in SZQNL at [33], in relation to similar wording in similar circumstances:
“… the grounds asserts a failure of natural justice because the decision was made ‘intentionally and negligently’. It is not clear to what legal vice the author was referring in accusing the Tribunal of making its decision ‘intentionally’. It is hoped that Tribunal members do not fall into making their decisions ‘unintentionally’.”
However, again at its best for the applicant, the following may be said to be complaints arising in ground two.
First, in relation to natural justice, see the discussion at [39] to [41] above. Further, in relation to s.424A, no obligation arose under this section as the “information” which the Tribunal could be said to consider would be the reason or part of the reason for affirming the delegate’s decision (as that term is understood in light of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18] in particular) was information that the applicant gave in writing in his protection visa application, told the Tribunal for the purposes of the review, and country information. Each is exempt from the obligation in s.424A(1) by operation of the exemptions in s.424A(3)(ba), (b) and (a) respectively.
Second, the ground contends that it was illogical of the Tribunal to “think” that the applicant’s involvement with the RPP and his support of the monarchy would not put him at risk of serious harm if he were to return to Nepal.
In the circumstances this is nothing more than a challenge to the factual findings made by the Tribunal. The Tribunal accepted that the applicant held certain views, but rejected some aspects of his claims as to past harm, and did not accept that, in the circumstances, the holding of these views would lead to a real risk of serious harm. The Tribunal’s findings were all reasonably open to it, and it gave cogent reasons for its findings. In these circumstances no legal error is revealed (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
While, as it is said, minds may differ, the Tribunal’s decision was not illogical, or for that matter irrational, as these concepts are understood with reference to the prevailing law. (on either of the two tests set out in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Gummow ACJ and Kiefel J and Crennan and Bell JJ, or on the approach taken by Hayden J in the same case).
Third, while the taking into account of an irrelevant consideration may lead to jurisdictional error (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595 and Abebev Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1), the applicant’s complaint merely challenges, as an irrelevant consideration, the Tribunal’s conclusion which was otherwise reasonably open to it on what was before it. It does not reveal jurisdictional error.
Fourth, the Minister submits the applicant’s complaint may be construed as an allegation that the Tribunal’s decision was affected by bias.
If it is to be so construed, then any such allegation in the circumstances presented, given the seriousness of the attack at it relates to the Tribunal member’s integrity, must be rejected at the first hurdle. The allegation is not clearly made, nor on the evidence can it be distinctly proven (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)). As von Doussa J said (in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668), it is rare that such an allegation can be made out with reference to the decision record alone.
Nor, as the Minister submits, is there any evidence on which the fair minded, well-informed lay observer would reasonably apprehend bias on the part of the Tribunal. There is nothing to show the Tribunal did not bring an open mind to the proceedings (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 and Ex parte H).
In all, ground two is not only not made out, but no reasonable prospects of success are evident.
Ground Three
In ground three the complaint is that the Tribunal failed to consider whether the applicant would be able to receive effective protection from the Nepalese authorities.
Relevantly, the meaning of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees[1] is a person who “… owing to a well founded fear of persecution …” for at least one of the five reasons enumerated in the Convention “… and who is unable or, owing to such fear, is unwilling to avail himself of protection …” in his country.
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention ”).
In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, (2004) 222 CLR 1 (“Respondent S152/2003”), Gleeson CJ, Hayne and Haydon JJ explained that, in circumstances where the threat of persecutory harm emanated from a non-state party, the willingness and ability of the state to protect its citizens may be relevant to whether the conduct of the third party gives rise to persecution (that is, the fear of serious harm). What arises from this is that, if the state provides its citizens with the requisite level of protection, the fear of harm will not amount to persecution (at [21] – [22] and [29] of Respondents S152/2003).
However, in Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 187 ALR 574 (“Khawar”) (at [66]), McHugh and Gummow JJ held it would be jurisdictional error to promote the concept of protection into the “well founded fear of persecution” concept. (See also McHugh J in Respondent S152/2003 at [65].)
The Minister submits that, given the Tribunal’s rejection of the applicant’s claim to have a well-founded fear of harm in Nepal, there was no obligation to consider whether effective protection was available to the applicant. (The Minister relied upon Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [9] in this regard.)
In my view, however, to the extent that this submission appears to be predicated on the basis that the fear of harm emanated from a third party (the Maoists), then it overlooks the fact found by the Tribunal (open to it on what was before it) that the Maoists are now the government, or a part of the government, in Nepal (see at [49], especially at CB 113.7: “… the Maoist government’s treatment …”).
It is unclear from the applicant’s ground whether he says he feared harm from the Maoists and would not be protected from the relevant government authorities (as a separate entity) or whether, having been a “victim of the Maoists,” he would be unable to receive effective protection because they are now in power.
But whichever of these, and on either of the approaches in the authorities above, the applicant’s ground has no merit in the circumstances. This is because the Tribunal did consider the applicant’s claim to have a well-founded fear of persecution on return based on his pro-monarchy views and instances of claimed harm in the past said to have emanated from the Maoists (see [49] at CB 113). It rejected this claim. In these circumstances there was no need for the Tribunal to make a specific reference to the adequacy, or effectiveness, or otherwise of state protection.
On the approach of Respondents S152/2003, even if some distinction could be drawn between the Maoist government and the “authorities” of the state (for example the police), the question raised is otiose in circumstance where there was no real chance of harm emanating from the Maoists and directed to the applicant if he were to return.
On the approach of Khawar, once the Tribunal found (as was reasonably open to it) that there was no evidence of a well founded fear of persecutory harm from the Maoists, the question of state protection was otiose given there would be nothing against which to measure the adequacy or otherwise of any available state protection.
Ground three therefore also lacks merit.
Ground Four
In ground four the applicant states that he was a member of the RRP and was pro-monarchy in Nepal. The Maoists oppose both and are “very influential” in Nepal. The complaint is that the Tribunal ignored and failed to deal with the applicant’s claims. Further, that the Tribunal “… inferentially and adversely construed against my claims”.
The former lacks merit for the reasons already set out above. The applicant’s complaint that the Tribunal ignored and failed to deal with his claims is, in the circumstances, an expression of grievance that the Tribunal did not find that his claims amounted to a well founded fear of persecution. The complaint seeks impermissible merits review (Wu Shan Liang).
The latter may be another attempt to inferentially assert bias. It does not advance the applicant’s case beyond the unmeritorious level set out at ground two above. In all, ground four is not made out.
Ground Five
Ground five asserts that the Tribunal failed to make a proper, genuine and realistic assessment of the real risk of serious harm from the Maoists in light of country information. The ground reiterated some of the applicant’s claims before the Tribunal.
The Minister submits, and I agree, that this is probably some attempt by the author of the ground to utilise the language of some of the reasoning of the Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 273 ALR 122 (“SZJSS”)).
In SZQNL, I identified, albeit in relation to the similarly worded and comparable ground four, that the approach of the author of this pro-forma application for judicial review is to use “… certain language to evoke a claim of jurisdiction error, but without any substance on which such an assertion can rest” (at [51]).
First, as the Minister submits, in SZJSS the High Court proceeded on the basis that the relevant decision maker is only required to give such consideration in a general sense (at [30] of SZJSS). It does not extend to an in-depth analysis of every piece of evidence before it.
Second, to the extent that the application seeks to invoke some criticism that the Tribunal failed to engage with the applicant’s claims in an intellectual or meaningful sense (Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (1995) 133 ALR 226) then this must be rejected. The Tribunal did consider the applicant’s claims, accepted some, rejected others, and came to a conclusion probative of these findings which were open to it on what was before it.
Third, as the Minister also submits, the examination of the applicant’s evidence, the weight to be accorded to that evidence, and to country information before it, is a matter for the Tribunal in the proper exercise of its jurisdiction (WAEE, NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
What remains is that this ground is just an expression of disagreement with the Tribunal’s conclusion by which the applicant is plainly aggrieved. No jurisdictional error is revealed. Ultimately, the ground lacks any merit as an assertion of error on the part of the Tribunal.
Conclusion
For the applicant to succeed the Court would need to, at the very least, find jurisdictional error in the Tribunal’s decision. The applicant’s grounds go nowhere near indicating such error, let alone providing illumination on the path to finding it. The application should be dismissed. I will make an order accordingly.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 23 March 2012
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