SZSCY v Minister for Immigration
[2013] FCCA 708
•12 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSCY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 708 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 48A, 422B, 424A, 425 |
| Cases cited: F. Hoffman-La Roche & Co. A.G. & Ors v Secretary for Trade and Industry [1975] AC 295 SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 |
| Applicant: | SZSCY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2497 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 11 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Fijian interpreter |
| Solicitors for the Respondents: | Ms L. Weston of Minter Ellison |
ORDERS
The application filed 1 December 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSCY.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2497 of 2012
| SZSCY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s orders made on 11 December 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after the applicant’s conference with a Panel Advisor. The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 4 March 2013. The applicant elected not to file an amended application or file any affidavit evidence.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1207626, a decision of Tribunal Member A. Mullin dated 11 October 2012, affirming the decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Weston appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a male citizen of Fiji, who lodged an application for a Protection visa on 27 October 2011 (CB 1-32). The applicant claimed that he left Fiji due to the financial hardship he faced as a father of six. The applicant also claimed he feared harm from the Fijian Military Government because they knew he was a true supporter of the Methodist Church of Fiji and the Government would know that when people leave Fiji they can reveal the nature of the leadership.
A certificate of marriage and two letters from pastors were submitted by the applicant in support of his claims (CB 33-34).
The applicant subsequently appointed a representative and, on 12 April 2012, the Department of Immigration and Citizenship (the “Department”) received a facsimile from the representative attaching a statutory declaration of the applicant, a second version of Form 866C (part of the Protection visa) and corroborative documents (CB 50-71).
In these documents, the applicant raised claims which differed, in a number of respects, from the claims raised by him in the response provided in the original application form. In his statutory declaration, the applicant explained that a Fijian acquaintance had helped him complete the first forms and that “most of the details were wrong” (CB 51). The applicant claimed his religion was the ‘Assemblies of God’ and that he had received 9 years of formal education, a diploma in Bible and Ministry, as well as a licence to preach. The applicant claimed that he left Fiji because he was detained and beaten in an army camp.
The applicant attended an interview with the delegate of the Minister on 24 April 2012 and on 30 April 2012 the Department received another submission from the applicant’s representative attaching a second letter from Pastor Valevatu (CB 72-73).
By decision dated 17 May 2012 the delegate refused to grant the applicant a Protection visa (CB 88-100). The applicant applied to the Tribunal for review of that decision on 1 June 2012 (CB 103-108).
The applicant attended a hearing before the Tribunal to present evidence and arguments on 30 August 2012, with his representative present (CB 127-130).
The decision record of the Tribunal indicates that, at the hearing, the member put a number of its concerns to the applicant for his response. Inter alia, the record indicated that the member put to the applicant that it had been unable to find his name on the list of pastors appearing on the website of the Cornerstone Tabernacle Church in Sabeto, Nadi (CB 154 at [49]). The applicant said that he had not been there long and the website went up afterwards.
By decision dated 11 October 2012, the Tribunal affirmed the decision not to grant the applicant a Protection visa (CB 143-163).
In reaching this decision, the Tribunal noted that there was a marked inconsistency between the claims advanced by the applicant in the two Protection visa forms. The Tribunal had regard to the applicant’s explanation but was not satisfied that this removed the doubts which arose from the inconsistencies (CB 157-158 at [65]-[68]). The Tribunal accepted that this alone did not demonstrate that the claims in the second application were not true, but it considered this cast doubt over the credibility of the claims.
In relation to the applicant’s specific claims, the Tribunal made the following findings (CB 159 – 162):
a)Despite the lack of evidence, the Tribunal was prepared to accept that the applicant supported the SDL (Soqosoqo Duavata ni Lewenivanua Political Party) during the 2006 elections, like many Fijians (at [73]). The Tribunal was also prepared to accept that the applicant gave some informal support to the party after the coup in 2006, and that this may have come to the attention of the new Military Government who may have warned him. However, the Tribunal did not accept that any such warning was accompanied by physical assault (at [74]);
b)The Tribunal also did not accept that the applicant was ever subsequently targeted by the military or that the authorities remembered him. The Tribunal noted the applicant’s claim that two claimed arrests reflected the military’s ongoing suspicion, but noted he previously asserted that he had been arrested for giving sermons (at [74]);
c)For these reasons, the Tribunal was not satisfied that the applicant was ever targeted by the military due to the assistance he gave the SDL up to 2007, or that he would suffer serious harm for such a reason in the future (at [75]);
d)The Tribunal also did not accept the applicant’s claims that he was a paster at the Cornerstone Tabernacle Church in Sabeta, Nadi, Fiji. In this regard, the Tribunal noted a number of matters including that the applicant’s name did not appear on the list of pastors published on the Church’s website (at [76]);
e)The Tribunal had regard to the licence to preach submitted by the applicant, but found that it was ‘unable to place any weight’ on the document because it was of such poor quality that his name could not be made out (at [77]). The Tribunal also noted that the congregation where the applicant claimed to have been a pastor was comprised entirely of ethnic Fijian-Indians. The Tribunal noted that the letters of reference from Pastor Valevatu did not mention that the applicant preached sermons which led to his claimed persecution.
f)The Tribunal considered that doubts arose as to the credibility of the applicant’s claim that he preached, but it was prepared to accept that he may have been asked to speak, as a lay preacher. However, the Tribunal had considerably stronger doubts about the applicant’s claim that he suffered harm as a result of two such sermons, due to implausibilities and discrepancies in this aspect of the applicant’s evidence. The Tribunal had regard to the applicant’s explanations, but found them unconvincing;
g)The Tribunal also had regard to the applicant’s claim, raised at the hearing, that he had discussed political issues with other members of his clan, but noted that his evidence in the respect was vague. The Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm for this reason; and
h)The Tribunal accepted the applicant’s claim that he had been active in broadcasting in a community FM station while in Australia, and that these broadcasts may be known in Fiji. However, the Tribunal was not satisfied that the applicant followed or endorsed such religious themes in his broadcasts (at [88]).
For the reasons above, the Tribunal did not accept that the applicant faced a well founded fear of harm in Fiji for a Convention reason. The Tribunal further considered if the applicant might meet the alternative criteria in s.36(2)(aa) of the Migration Act, but was not satisfied that the information before the Tribunal provided any basis for finding that there were substantial grounds for believing that there was a real risk of significant harm.
Application to the Federal Circuit Court
The Application to this Court filed 1 November 2012 seeks the following orders:
1. The decision of the Refugee Review Tribunal be Quashed.
2. The Refugee Review Tribunal be ordered to redetermine my application for Refugees status according to Law.
3. The Court appoint a lawyer to help me prosecute our case before the Court.
4. Leave to file any amended application together with particulars and supplementary affidavits together with any documents.
5. An injunction restraining the Minister, by himself, his department, officers, delegate or agents from removing me from Australia before the finalisation of Federal Magistrates Court of Australia and the finalisation of any relief granted by the Court.
The originating application, filed on 1 November 2012 raises the following five grounds of judicial review:
1. The Tribunal decision is vitiated by jurisdictional error.
2. The Tribunal denied me procedural fairness and natural justice by it’s failure to engage Australia’s International Obligation under the Refugees Convention, the International Covenant of Civil and Political Rights (ICCPR) it’s second optional Protocol aiming at the Abolition of the Death Penalty and Covenant Against Torture (CAT)
3. The tribunal did not inform and warned me that it was not going to engage and invoke Australia’s International Obligation under the Refugees Convention, the International Covenant of Civil and Political Rights (ICCPR) it’s second optional Protocol aiming at the Abolition of the Death Penalty and Covenant Against Torture (CAT) so that I could have the opportunity to inform the tribunal that it should not take that cause.
4. I had a legitimate expectation that the Tribunal would engage and invoke Australia’s International Obligation under the Refugee Convention, the International Covenant of Civil and Political Rights (ICCPR) it’s second optional Protocol aiming at the Abolition of the Death Penalty and Covenant Against Torture (CAT)
5. I am seeking legal representation for the proceedings in this Court and ask to appoint a legal representative for me to help prosecute my case before the Court.
By orders made by the Court on 11 December 202, the applicant was granted leave to file and serve an amended application including any additional grounds of review with complete particulars of each ground by 4 February 2013. No such document was filed by the applicant.
Applicant’s Submissions
At the First Court Date directions hearing on 11 December 2012 the applicant was granted leave to file a short written outline of submissions 14 days before the date of the final hearing. The applicant did not file any written submissions before the hearing. At the hearing the applicant attempted to hand up documents and present witnesses that were not previously before the Tribunal. It was explained to the applicant a number of times that it was not the role of the Court to conduct a merits review of his case. It was further explained to the applicant that this Court cannot consider new evidence or new submissions in respect of the visa application’s merits. The applicant was told that the limited function of this Court is to review if the material and the arguments that were put before the Tribunal were considered correctly. The applicant submitted that the Tribunal disagreed with the evidence that he gave and that the Tribunal had asked him to bring evidence, which he only had recently received from Fiji.
The applicant stated that he did not seek an extension of time at the Tribunal hearing to present further evidence. The applicant, once again, sought to adduce evidence that he admitted had not been before the Tribunal. The applicant submitted that he feared returning to Fiji and feared for his safety as Fijians are often beaten up and not given freedom to move. The applicant was asked if he had explained this to the Tribunal and if so, did the Tribunal accept his submissions. The applicant stated that he had explained this to the Tribunal and that it was not accepted.
First Respondent’s Submissions
Ms Weston, appearing for the Minister, submits that in order to be granted the relief sought in these proceedings, the applicant must establish jurisdictional error on the part of the Tribunal. Absent jurisdictional error, the decision of the Tribunal is a ‘privative clause decision’ under s.474(2) of the Migration Act, which is therefore final and conclusive, pursuant to s.474(1)(a) of the Migration Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 .
For the reasons that follow, the Minister submits that the grounds of the application to the Court do not demonstrate any jurisdictional error on the part of the Tribunal, and that the application should therefore be dismissed.
Ground 1
The first ground of the Application raises a broad allegation that Tribunal’s decision is vitiated by jurisdictional error. However, no explanation or particulars are provided to identify what type of jurisdictional error is said to have been made.
The Minister submits that no jurisdictional errors should be found on the part of the Tribunal. Section 422B in Division 4 of Part 7 of the Migration Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matter it deals with.
The Minister submits that the Court should not be satisfied that the Tribunal failed to meet the obligations arising in Division 4 of Part 7 of the Migration Act. In this regard, the Minister notes:
a)The Tribunal invited the applicant to a hearing to present evidence and arguments in support of his application, in compliance with s.425 of the Migration Act;
b)Moreover, the Tribunal’s Decision Record indicates that the issues which were dispositive to the review were discussed at that hearing. The Tribunal records that it raised with the applicant the marked differences between the two Protection visa forms submitted by him (at [34]), the implausibility his work on the radio here would lead to harm in Fiji (at [42]), the fact that his name was not listed as a pastor on the website of Cornerstone Tabernacle (at [48]), inconsistencies in his claims and evidence before the delegate and the Tribunal (at [54]), and the fact that he had applied for a visa to Australia on 3 October 2011 before the claimed second sermon (at [58]). Accordingly, it is submitted that the Tribunal should not be found to have breached s.425 of the Migration Act in the manner identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152;
c)The Tribunal’s decision record indicates that it utilised the procedures prescribed by s.424AA of the Migration Act, by putting to him that Departmental records indicated the applicant had applied for a visa to Australia before the claimed second sermon. The Tribunal states that it explained the significance of this information and invited the applicant to comment or respond either immediately, at the adjourning hearing, or in writing, in compliance with the prescribed procedural requirements (see [59]). Accordingly, to the extent that the Department’s records constituted ‘information’ within the meaning of s.424A (which is not conceded, having regard to the meaning of ‘information’ established in SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609), the Minister submits that the Tribunal complied with its obligations under that provision;
d)The Minister submits that the Tribunal did not rely upon any other material which gave rise to obligations under s.424A of the Migration Act, noting that no obligations arose in respect of materials submitted by the applicant to the Department or the Tribunal, country information or the Tribunal’s subjective thought processes (see s.424A(3) of the Migration Act and SZBYR (supra)); and
e)For completeness, the Minister notes that the Tribunal had regard to lists of pastors of the Cornerstone Tabernacle Church, but submits that lists did not constitute ‘information’ within the meaning of s.424A. The lists were not about the applicant or an individual, they were about a class of persons to which the applicant claimed to be a member (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82). Accordingly, the material is excluded from the scope of s.424A of the Migration Act by reason of s.424A(3)(a) of the Migration Act. In any event, it was the absence of any reference to the applicant in the list to which the Tribunal had regard (at [76]), and an omission or the absence of information is not ‘information’ within the meaning of s.424A of the Migration Act (SZBYR (supra)).
For the reasons above, the Minister submits that the first ground of the Application to the Court does not demonstrate jurisdictional error on the part of the Tribunal and it should be dismissed.
Ground 2
The Minister submits that Ground 2 appears to be primarily directed at engaging the Court in impermissible merits review of the Tribunal’s decision. It is well established that it is not the role of the Court to review the merits of the Tribunal’s factual findings and so, to the extent this Ground does not raise any theoretically arguable basis upon which the application could be granted (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407).
To the extent that the ground alleges that the Tribunal misunderstood or misapplied the relevant statutory provisions or visa criteria, the Minister submits that the grounds should not succeed. In making its decision the Tribunal considered whether the applicant met the criterion for a Protection visa contained in s.36(2) of the Migration Act, including the complementary protection criterion in s.36(2)(aa). The Decision Record contains an accurate summary of the applicable statutory provisions and criteria (at [5]-[18]), and the misunderstanding or misapplication of that criteria.
To the extent that Ground 2 alleges or implies that the Tribunal breached its procedural fairness obligations, for the reasons outlined above in respect of Ground 1, the Minister submits that the ground does not disclose jurisdictional error and should therefore be dismissed.
Ground 3
To the extent that Ground 3 of the Application contends that the applicant was not put on notice of the Tribunal’s ultimate reasoning, the Minister submits that no arguable jurisdictional error is disclosed. It is well established that the Tribunal is not required to put its ultimate reasoning to an applicant for comment or response. As Lord Diplock stated in F. Hoffman-La Roche & Co. A.G. & Ors v Secretary for Trade and Industry [1975] AC 295 which was cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [48]):
[T]he rules of natural justice do not require the decision to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.
To the extent that this Ground might be understood to raise an allegation that the Tribunal breached s.425 of the Migration Act in the manner considered by the High Court in SZBEL, the Minister submits that the Ground should not succeed for the reasons set out above in relation to Ground 1.
Accordingly, the Minister submits that Ground 3 of the application does not disclose jurisdictional error on the part of the Tribunal and should be dismissed.
Ground 4
Ground 4 of the Application before the Court contends that the applicant had a ‘legitimate expectation’ that the Tribunal would engage and invoke Australia’s international obligations.
The Minister notes that the phrase ‘legitimate expectation’ has been described by the High Court as an unfortunate expression which should be disregarded: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [65] per Gummow, Hayne, Crennan and Bell JJ. However, it does not appear that Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 has been overruled, in this regard.
In any event, to the extent that the phrase may be understood to be applicable in circumstances such as the present, where the rules of procedural fairness apply to the exercise of a statutory power, the Minister submits that no jurisdictional error should be found. In Ground 4 of the Application, the applicant contends that he has a ‘legitimate expectation’ that the Tribunal would make a particular decision. However, while the applicant was entitled to procedural fairness in accordance with the Tribunal’s obligations, he was not entitled to have his unprompted subjective expectations satisfied (see also SZQYU v Minister for Immigration & [2012] FMCA 1114).
The Minister submits that Ground 4 of the Application should be dismissed.
Ground 5
The Minister submits that Ground 5 of the Application does not identify any arguable jurisdictional error on the part of the Tribunal. Accordingly, the ground should be dismissed.
The Minister notes that at the first court date the applicant was referred to the panel advice scheme, thereby satisfying the request for legal assistance.
Consideration
At the hearing the applicant was assisted by an interpreter competent in the translation of Fijian and English. The applicant confirmed that he had received his legal advice from his allocated panel adviser. The applicant elected to not file an amended application or any written submissions. The applicant sought to tender a document that had not previously been provided to the Tribunal and, as indicated by Ms Weston who had been provided with a copy by the applicant, related to the applicant’s bridging visa A application and was not relevant to the present proceedings. It was explained to the applicant that the function of the Court is to review the process adopted before the Tribunal. It was explained that it is not the function of the Court to reconsider the applicant’s application or determine whether the applicant should be granted a Protection visa. The function of the Court is to review what the Tribunal undertook at its hearing to see that it complied with the law. It was explained to the applicant, that the Court only considers whether the material and arguments put before the Tribunal were considered correctly. The applicant was advised that the Court is not in a position to take new evidence.
The applicant explained that he had tried his best to get the document before the Tribunal but the document had been delayed coming from Fiji. He again requested the Court to take into account the new document he had before him. The applicant also asked if he could have two witnesses appear before the Court. It was established that the two witnesses had not appeared before the Tribunal. The RRT Hearing Record (CB 129) records that the applicant, his advisor and interpreter were the only persons to appear before the Tribunal Member on 30 August 2012. This issue was raised again by the applicant and is addressed at [46] below. Again, it was explained to the applicant that both issues fall into the same category, as previously discussed, in that unless the document or the witnesses were before the Tribunal, the Court cannot hear new material.
The applicant then moved on and submitted that the Tribunal did not accept the evidence the applicant gave in relation to him preaching in church. The applicant claimed that the Tribunal enquired as to why he did not submit a letter from the priest who witnessed what had happened to him.
The applicant also submitted that the Tribunal denied acknowledging the beating he had received. The applicant claimed that the Tribunal had asked for the applicant to provide evidence, which he finally received and wished to hand up to the Court. He claimed that the Tribunal did not extend the time of his hearing to allow him to present his documents. It is noted that the hearing was held on 30 August and the decision is dated 11 October 2012. The Tribunal invited the applicant to indicate whether he required further time to respond and this is addressed at [59] (CB 156), where it states:
59. I invited the Applicant to comment on the information or respond to it in any way he wished, and that he could do so immediately, at an adjourned hearing or in writing, with more time available for these purposes if required. After a brief adjournment to consult his advisor he indicated that he wished to respond at once. He said the date of 16 October 2011 for his sermon was incorrect – the correct date was 25 September 2011. Further, the date when he lodged his visa application was incorrect. His memory had suffered from the trauma he experienced and he was not used to remembering dates and times.
(CB 156)
The applicant also wished to submit a CD which alleged to show evidence of people getting beaten up in Fiji when they were returned there. It was again explained to the applicant that the Court was unable to consider this evidence.
The applicant asked if he was able to make a new application before the Department, so as to present all the new evidence he had collated.
Ms Weston, for the Minister, submitted that the thrust of the applicant’s oral submissions referred to new evidence that was not before the Tribunal and reiterated that it was not the role of the Court to engage in merits review. Ms Weston also noted that any application for a second visa application would be barred by s.48A of the Migration Act, unless the applicant was able to establish a basis for that bar being lifted.
Ms Weston submits that the applicant appeared to have claimed that he sought to put material before the Tribunal, and a request for an extension was refused. The Minister submits that there is no evidence of such a request having been made or refused. Ms Weston took the Court to p.110 of the Court Book which showed an acknowledgment letter where the applicant was advised to provide material or written arguments as soon as possible. The letter had been sent to the applicant’s migration agent in accordance with his request.
Ms Weston then took the Court to CB 119 and 120 which shows a document entitled “Invitation to Appear Before the Tribunal…” which invited the applicant to “appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review.” (CB 119)
The “Invitation to Appear Before the Tribunal…” also states:
The enclosed leaflet “Information about Tribunal Hearings” contains important information about hearings and your rights. In particular, you may ask the Tribunal to obtain oral evidence from another person or persons. Such a request must be given to the Tribunal within 7 days of being notified of this invitation.
(CB 120)
Ms Weston drew the Court’s attention to the “Response to Hearing Invitation” which included a section for nomination of witnesses. On p.128 of the Court Book it shows that the applicant or his representative had ticked a box indicating that he did not propose to call witnesses. Ms Weston also took the Court to p.129 of the Court Book which shows that the “RRT Hearing Record” indicates that the applicant did not provide documents at the hearing, other than his passport. The “RRT Hearing Record” also does not indicate that the applicant asked for an opportunity to put on further evidence.
Ms Weston took the Court to [59] (CB 156) of the Decision Record, where it states:
59. I invited the Applicant to comment on the information or respond to it in a way he wished, and that he could do so immediately, at an adjourned hearing or in writing, with more time available for these purposes if required. After a brief adjournment to consult his advisor he indicated that he wished to respond at once…
(CB 156)
Ms Weston submits that even if the purported request for an opportunity to put on written material might be capable of demonstrating jurisdictional error, which is not conceded by the Minister, it is submitted that it fails at a factual level. The Minister submits that the applicant pointed to two aspects of the Tribunal’s decision where he said the Tribunal had erred. It is argued that the Tribunal had regard to the claimed beatings that were put before it, and the contents of letters provided from a pastor. The Minister submits that the findings made in relation to those matters were factual findings for the Tribunal par excellence. Disagreement with the Tribunal’s treatment of those matters does not demonstrate jurisdictional error.
I then asked the applicant if he had had the written submissions of the Minister read to him and if there was anything arising from those submissions which the applicant wished to comment on or raise objection to. The applicant submitted, in reference to Ground 5 of his Application, that he was not able to get a lawyer for himself. The applicant was not sure if he was able to answer the questions himself. I explained to the applicant that any argument to be advanced had to be done so by him. It is not for the Court to question the applicant on various aspects of his claims. The role of the Court is to review what occurred before the Tribunal.
The applicant sought to raise the issue about an incident in Fiji and the date that had occurred. The applicant claimed to have a problem with forgetfulness. The applicant claimed that the first incident occurred in the month of July and the second incident occurred in September. He claims that, due to his forgetfulness, he identified the wrong dates and the Tribunal did not accept his evidence. Ms Weston brought to the Court’s attention to [58] and [59] of the Tribunal’s Decision Record, which states, in relation to the confusion about dates:
59. … He said the date of 16 October 2011 for his sermon was incorrect- the correct date was 25 September 2011. Further, the date when he lodged his visa application was incorrect. His memory had suffered from the trauma he experienced and he was not used to remembering dates and times.
(CB 156)
The applicant agreed that that was the correct date and that the Tribunal Member had understood him correctly.
Ms Weston also took the Court to p.161 of the Court Book at [82] of the Decision Record, where it states:
…I believe that the date of 25 September 2011 which he now advances has simply been adopted to account for the difficulty with his claims, explained to him at the Departmental interview, rather than because his memory has now improved.
(CB 161)
The applicant argued that the Tribunal goes on the reach the conclusion that the applicant did not deliver the sermon as claimed. The Minister submitted that these are factual findings that were open to the Tribunal and the evidence before it and that no jurisdictional error has occurred.
The applicant, at the hearing, tried to hand up a clear copy of the document contained at p.70 of the Court Book. He stated that he had misplaced a clear copy of the document and had to hand a poor quality copy of the document to the Tribunal. He stated that it identified him as working as a pastor. Ms Weston raised objection to this document on the basis that the applicant appeared to be adducing new evidence, and that the Court could not engage in merits review. I indicated that I would not accept the copy.
The applicant went on to explain that he fears for his life if he was to return to Fiji as Fijians get beaten up and are not given freedom to move. I asked the applicant if all of this had been explained to the Tribunal. The applicant replied that he had, but that the Tribunal had not accepted his statements. I explained to the applicant that it could only consider the evidence that were before the Tribunal and whether or not the Tribunal correctly dealt with it.
In respect of the pleaded grounds I accept the written and oral submissions presented by Ms Weston as correctly addressing the issues raised therein and I am of the opinion that nothing further needs to be added. I have also considered the material available in the Court Book and particularly the contents of the Decision Record. The substantial basis for the Tribunal’s findings was the issue of the applicant’s credit. This arises in relation to the inconsistent claims advanced by the applicant in his first and second Protection visa applications with the reasons fully explained at [66]-[70] of the Findings and Reasons. Similarly, in relation to the issue of sermons preached credibility of the claim is raised with the finding that the consequence of this alleged delivery of those sermons was implausible. The reasons are set out at [76]-[84] (CB 159-161) of the Decision Record.
The Tribunal’s adverse credibility findings and consequential rejection of the applicant’s claims on the basis of credibility is a matter for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra).
Consequently, the application cannot succeed and should be dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 12 July 2013
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