SZTBV v Minister for Immigration & Anor - [2014] FCCA 2106

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBV v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2106

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.36, 91X, 411, 417, 424AA, 476

Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486; [2000] FCA 1456
SZGME v Minister for Immigration and Citzenship (2008) 168 FCR 487; [2008] FCAFC 91
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
SZMME v Minister for Immigration and Citizenship [2009] FMCA 323
Spurr v Minister for Immigration and Citizenship [2010] FMCA 996
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Nagalingam v Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265); (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
SZRTN v Minister for Immigration & Anor [2013] FCCA 583
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

Applicant:

SZTBV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1652 of 2013

Judgment of:

Judge Nicholls

Hearing date:

28 March 2014

Date of Last Submission:

28 March 2014

Delivered at:

Sydney

Delivered on:

12 September 2014

REPRESENTATION

Applicant:

In person

Appearing for the Respondents:

Mr W Sharpe

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 19 July 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2013

SZTBV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 July 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 June 2013 which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

The applicant claimed to be a national of the People’s Republic of China (“China”) (“Court Book” – “CB”‑ CB 13). He first applied for a protection visa on 24 February 1997 (CB 1 to CB 23). The applicant gave a particular name in his application form at that time. Noting the provisions of s.91X of the Act, it is appropriate to refer to this name as “Mr D”. The applicant’s claims to protection were said to be based on his Korean ethnicity and his involvement in pro-ethnic Korean activities in China which were seen as anti-government (CB 17 to CB 20). He feared persecution from the local authorities and the Public Security Bureau (Chinese Security) (CB 19 and CB 31). The applicant made reference to a number of incidents of harm (CB 18 to CB 19).
A delegate of the Minister (“the first delegate”) refused the application on 11 April 1997 (CB 26 to CB 31). The basis for the decision was that the first delegate could find no evidence relating to the harm or mistreatment of ethnic Koreans in China (CB 30.6).
On 20 October 1998, the applicant applied for a protection visa for a second time (CB 32 to CB 54). On this occasion the applicant used a different name (this can be appropriately referred to as “Mr C”). In this instance the applicant stated no claims to protection in his application form.
A different delegate of the Minister (“the second delegate”) refused this application on the basis that, on what was before him, he could not be satisfied that the applicant was a person to whom Australia owed protection obligations (CB 61.6).
On 10 July 2012 the Minister’s Department received a communication from a registered migration agent notifying her appointment as the applicant’s representative with regard to seeking the Minister’s personal intervention in relation to the applicant, presumably pursuant to s.417 of the Act (CB 63 to CB 66). The agent referred to the applicant as Mr C.
An officer of the Minister’s Department replied to the representative by letter dated 6 August 2012 (CB 67 to CB 69). Two matters are of relevant note. First, the letter notified the representative that the applicant had previously applied for a protection visa on two occasions. That on the first occasion he used an “alias name” (Mr D). The letter notified that each of the visa applications had been refused.
Second, the letter advised that in relation to both decisions made by the two delegates, “the Department” subsequently found that the applicant had not been properly notified of the respective decisions. As such, the letter enclosed a further letter of notification for both decisions (CB 70 to CB 72).

The Tribunal

The applicant applied for review to the Tribunal on 13 August 2012 (CB 73 to CB 77). He again appointed the registered migration agent to represent him (CB 75). The decision to be reviewed was identified as being the decision made on 26 October 1998 (CB 76).
The applicant provided a written statement to the Tribunal, which it received on 30 August 2012 (CB 82 to CB 85). In this statement he claimed to be Mr C, and that he left China using a “fake Korean passport” (CB 82). He claimed to have been persecuted by the Chinese government because he had reported the corrupt activities of the general manager of a state owned enterprise (CB 83). This included being detained by the authorities on three occasions, tortured to “confess”, and sentenced to a labour camp where he was beaten. He came to Australia after being released on “medical parole” (CB 84).
The applicant attended a hearing before the Tribunal on 19 April 2013 (CB 91 to CB 92). He appointed a different “authorised recipient”, a “friend”, on 16 May 2013 (CB 93).
In its decision record, the Tribunal initially said that the application for review was in relation to the 1997 decision and therefore, by omission, not the 1998 decision (see [3] at CB 97). Yet, as set out above, the application for review makes reference only to the 1998 decision. The Tribunal then subsequently said that the applicant had applied for review of both the decisions ([23] at CB 100) (see further below at [16]).
The Tribunal found that both the decisions were “RRT reviewable decisions” for the purposes of s.411 of the Act. No reference is made to the 1997 decision in the application for review. However, it can be accepted that the applicant’s subsequent written statement received by the Tribunal on 30 August 2012 provided the basis for the Tribunal’s finding that he sought review of both decisions (CB 82 to CB 85). In broader terms, he sought review of the entirety of his circumstances in relation to his claim to protection in Australia. Although the Tribunal made no such express finding, I am satisfied that, on a fair reading of its decision record, it proceeded to review both decisions, given what the applicant said in his written statement (see [26] at CB 100).
In view of the revelations in the applicant’s written statement, and the circumstances of the two protection visa applications, it was appropriate for the Tribunal to focus on, and consider, the question of the validity of the applications.
The Tribunal’s understanding and expression of the relevant law in relation to such validity is unexceptional (see [23] at CB 100 to [28] at CB 101).
The Tribunal’s account of the hearing it conducted with the applicant provides insight into the Tribunal’s approach to the task before it (see [29] at CB 101 to [38] CB 102). The following elements emerge:
a)The Tribunal treated both the 1997 and 1998 applications as being made by the same person, even though different names were used ([30] at CB 101).
b)There was no dispute (and consistent with the applicant’s written statement) that the 1997 application was made by him “under an alias” ([30] at CB 101).
c)The Tribunal considered that the second application was invalid with reference to the understanding of the relevant law (see at [20] at CB 99 to [33] CB 101 and references to Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486; [2000] FCA 1456, SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91, NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199, SZMME v Minister for Immigration and Citizenship [2009] FMCA 323, Spurr v Minister for Immigration and Citizenship [2010] FMCA 996).
d)The first application was found to be valid ([33] at CB 101).
e)While the Tribunal therefore proceeded on the basis that it would “review” the first decision, it made plain that it would “look at his claims afresh…” ([33] at CB 101).
f)The Tribunal also made clear that it would consider the applicant’s claims as against the “complementary protection” criterion ([34] at CB 101), which had been inserted into the Act after the making of the first delegate’s (and second delegate’s for that matter) decision (s.36(2)(aa) of the Act).
The Tribunal accepted that the applicant was a national of China and assessed his claim to be a refugee as against that country ([39] at CB 102).
The Tribunal noted the applicant’s evidence to it that he did not know the contents of the 1997 visa application, which was written by another person. The applicant gave evidence to the Tribunal that the claims in the 1997 application concerning his involvement in an organisation supporting Koreans in China were not true ([42] – [43] at CB 102).
The Tribunal reported that the applicant’s evidence was that he did not pursue the claims in the 1997 application before the Tribunal. On this basis, the Tribunal found that the applicant did not have a genuine fear for the reasons stated in that application ([45] at CB 103).
The Tribunal considered the applicant’s claims to protection which were ultimately put to it by way of the applicant’s written statement (CB 82 to CB 85) and his oral evidence. The background to these claims was that his parents were North Korean Chinese who had returned to China some years earlier. His father was persecuted during the Cultural Revolution. As a result of these experiences, he realised that, under the Communist Party, people were unable to enjoy democracy and freedom ([47] at CB 103).
The applicant claimed to have been detained by the Chinese authorities on three occasions. The first was in 1989 after he supported protesting students in Tiananmen Square. He was arrested and detained for three days ([49] at CB 103).
The second detention was in January 1996. He was held for fifteen days. This arose from a “corporate restructuring” of the paint factory where he was employed and where a large number of “state assets were embezzled” ([50] at CB 103).
The third detention followed his complaints about the earlier detention where he felt he had been “done an injustice” ([51] at CB 104). He was detained and tortured for “twenty eight hours” and the authorities “extorted confessions from him” ([51] at CB 104). He was sentenced to one year’s detention in a labour camp but was released on parole after about five months following his hospitalisation.
The Tribunal properly understood that to determine whether the applicant met either of the criteria for a protection visa (s.36(2)(a) or s.36(2)(aa) of the Act) it was necessary to make findings of fact on the claims presented.
The Tribunal noted the caution provided by relevant authorities (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47) concerning the “benefit of the doubt” to be applied to asylum seekers who are otherwise found to be credible ([53] at CB 104). However, it also noted that it was not required to uncritically accept any or all of what an applicant puts to it (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265); (1994) 52 FCR 437).
The Tribunal found that the applicant was not a credible witness ([55] at CB 105). It found that there were significant inconsistencies between his written statement and his oral testimony. It gave reasons for this finding probative of the material before it, and in circumstances where it was reasonably open to it to do so ([56] at CB 105)

(see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 (“Durairajasingham”)).
Further, the Tribunal found that when presented with these inconsistencies the applicant altered his oral testimony. This “compounded” its concerns and resulted in the Tribunal expressing a further concern that he was not recalling events from personal experience, but rather from what was in his written claims ([56] at CB 105). The Tribunal also found that certain aspects of his claims were “highly improbable” ([58] at CB 105) and his oral testimony, in contrast to his written statement, was “very vague” ([59] at CB 106).
In addition, the Tribunal found that the applicant’s evidence regarding the “documents he used to leave China shifted over the course of the hearing and cast further doubt upon his credibility” ([60] at CB 106).
Given the applicant’s complaint in ground one of the application (see [34] below), I note that the Tribunal said that, in utilising the facility and procedure in s.424AA of the Act, it put to him certain information involving a “stamp” in a passport issued by the Chinese authorities ([61] at CB 106). [The passport with the name of Mr C. That is, the name the applicant said was his “correct” name.] A copy of that passport page was provided to the Minister’s Department in reference to his 1998 application, which showed he had a tourist visa for Thailand. The Tribunal found inconsistency between this and the applicant’s oral account as to how he came to Australia, where he said he used a North Korean passport ([52] at CB 104 and [61] at CB 106).
The Tribunal rejected the applicant’s explanation that the stamp was provided by the agency that assisted him in coming to Australia ([62] at CB 106). The Tribunal also considered another explanation given by the applicant for the Thai visa stamp in his Chinese passport. This was that it had been placed in the passport by the “agent” whom he had paid to assist with the second visa application. The Tribunal found that even if this were the case, it did not resolve concerns about the vague and contradictory information the applicant had provided ([63] at CB 106 to CB 107).
The Tribunal had concerns about the applicant’s explanation as to why the second visa application did not contain any actual claims for protection. The Tribunal gave reasons for this ([64] at CB 107). I note that the Tribunal, amongst other matters, was concerned with the plausibility of the applicant’s account that he did not think it necessary to tell the migration agent why he was afraid to go back to China ([65] at CB 107).
The Tribunal acknowledged that the provision of the admitted false information in the first visa application did not of itself support an adverse credibility finding. However, its concerns about his credibility were deepened in light of the applicant’s explanation as to how he came to lodge the two applications ([65] at CB 107 to [66] at CB 108).
In all, based on its analysis outlined above, the Tribunal rejected that the applicant had ever come to the attention of the Chinese authorities for any reason. It concluded that the applicant had “fabricated his claims for protection in their entirety” ([66] at CB 107 to CB 108).

The Application to the Court

The grounds of the application before the Court are in the following terms:
“1 According to the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status. ‘Applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ In my case, RRT did not implement the rule. In RRT Decision Record para.59 to 63, the evidences that I provided fully showed that I did not take the initiative to obtain the Thailand visa stamp. My passport had been handed over to the swindlers agent. They made up the application materials what I did not know. I could not master what the argent had done during my visa application. RRT require me to provide evidences about the stamp on the passport, which was beyond my ability and contrary to law.

2 RRT did not consider the differences between Australia and China, which was unfair. In RRT Decision Record para.72, RRT thought that I have source of income in Australia, then I would find a job and earn money in China, which was totally without foundation. The employment environment of China is totally different from Australia. I will face death, because there is no social assistance, relatives and friends support and other income sources in China. RRT ignored this fact, which was incompetent.

3 ‘If the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status. RRT did not give priority to accept by evidences, which was contrary to law. When I applied refugee visa to immigration office, I was misguided by swindlers agent, which has a negative impact on my application. RRT did not consider the negative impact, which made me bear the consequences. This was unfair.”

[Error in the original.]

Before the Court

At the first Court date in this matter the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The applicant was referred to a lawyer on the then panel of the NSW Refugee Review Tribunal Legal Advice Scheme (“the RRTLAS”). Orders were made giving the applicant the opportunity to amend his application and provide evidence by way of affidavit. In the meantime, given the nature of the grounds of the application, the matter was set down for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Nothing further was subsequently filed by the applicant.
At that hearing the applicant again appeared in person. He was assisted by an interpreter in the Mandarin language. Mr W Sharpe appeared for the respondent Minister.
The applicant made a number of statements directed to his immigration history in Australia since his arrival in November 1996. First, he was insistent that he thought he had remained in Australia with a valid visa since his release from immigration detention in 1998.

It is not apparent that this has any relevance to any issue before the Court now. The applicant’s stay in Australia between 1998 and the proceeding before the Tribunal with, or without a valid visa, was not a relevant consideration before the Tribunal.
In any event, the Minister’s Department acknowledged, by letter dated 6 August 2012 (CB 67 to CB 69), that a purported notification of the outcome of his protection visa application made in 1997, had not been “correctly” executed. He was “properly” notified by letter dated 6 August 2012 (CB 70 to CB 72). This meant that his application to the Tribunal made on 13 August 2012 (CB 73 to CB 77) was made within the time prescribed for such applications.
Second, the applicant submitted that he did not “think” that the Tribunal member’s questions to him, presumably at the Tribunal hearing, were “clearly translated” to him. He submitted that he did not understand a question regarding which passport he had used to travel to Thailand and “the timing” of his travel arrangements. Because of this, his answer to the Tribunal was “not accurate”.
It is relevant to note that at the first Court date in this matter, amongst other orders, an order was made giving the applicant the opportunity to file any additional evidence, including any transcript of a Tribunal hearing, and to do so by way of affidavit. The applicant has provided no such evidence to the Court, and, in particular, no evidence to support the allegation as to what he says occurred at the Tribunal hearing. Importantly, the applicant did have access to some legal advice.
On the relevant evidence before the Court, that is, the Tribunal’s account of what occurred at the hearing, the matter of the Thai visa stamp in his Chinese passport was discussed. It is the case that the Tribunal requested the applicant’s explanation as to the circumstances surrounding his Korean and Chinese passports, and the Thai visa in the Chinese passport. But there is nothing to show that the applicant misunderstood the Tribunal’s questions because of errors in interpretation.
In rejecting the applicant’s explanation, the Tribunal’s finding was essentially based on inconsistencies with earlier evidence he had given. In all the circumstances, the applicant’s complaint now, and when regard is given to how he expressed it before the Court, is an attempt to justify the inconsistency in his evidence to the Tribunal. No legal error is revealed.
Third, the applicant made references in his submissions to the Court to “the swindlers agent”. This appeared to be a reference to how he had come to make his application for a protection visa, in context, the 1997 application. This is dealt with in the consideration in relation to ground three below.
As to the other two grounds of the application, the applicant was unable to assist the Court in any meaningful way. He explained that the grounds had been drafted by a “student” to whom he had been referred by a migration agent.

Consideration of the Grounds of the Application

The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. I note that the Courts power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
A number of points preliminary to the consideration of the grounds of the application must be made. First, the applicant explained at the first Court date that his application to the Court was not drafted by him, as he could not speak English. Before the Court today it was clear, as referred to above, that the applicant relied on a “student” to draft the grounds for him. His assistance in explaining the grounds was, therefore, limited.
Second, the correspondence on the Court’s file indicates that the applicant did receive written legal advice from a lawyer on the panel of the RRTLAS following a meeting with the lawyer.
Third, although given the opportunity to do so, the applicant has filed nothing further to support the application to the Court. As set out above, the Tribunal relied to a considerable extent on the applicant’s evidence given at the hearing. Its evaluation of this evidence was a central part of its decision. Despite opportunity, the applicant has brought no evidence to challenge the Tribunal’s account of what occurred at the hearing. Nor does the applicant otherwise seek to challenge this account.
Grounds one and three of the application seek to rely on parts of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR 1979, Reissued December 2011) (“the Handbook”). The applicant’s assertion that the Tribunal fell into error because it breached, or failed to follow, what is in the Handbook does not assist in raising any arguable case.
It is clear that the Handbook is not part of domestic Australian law such that any error in applying it by the Tribunal can reveal some failure in the exercise of its jurisdiction. In SZRTN v Minister for Immigration & Anor [2013] FCCA 583 at [48], I said the following:
“At best, the authorities provide that the Handbook “does no more than provide a source of guidance and assistance” (see Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 at [10] per Finn J). See also Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489 at [9] per Tamberlin J: “...While some useful guidance can be obtained from the Handbook it is not determinative in any sense...”. In Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Hill J, the Court noted the “dangers” inherent in using the Handbook as an aid to the interpretation of relevant terms.”
In any event, no such failure by the Tribunal, as asserted by the applicant, is apparent on what is before the Court.
In ground one, the applicant complains that the Tribunal failed to implement “the rule” set out in the Handbook concerning the concept of the “benefit of the doubt”. Although not referenced in the applicant’s ground, I assume that this is reference to what is set out at [203] - [204] of the Handbook.
It is important to note that this is directed to circumstances that cautions each signatory state to the Refugees Convention that an otherwise credible applicant for protection should not be refused recognition or protection as a refugee simply on the basis of not having documentary evidence to substantiate their “story”.
As the Handbook also makes clear, the exercise of the benefit of the doubt requires satisfaction as to the applicant’s general credibility before consideration should be given to it ([204] of the Handbook). In the current case the Tribunal was not so satisfied as to the applicant’s general credibility. It gave comprehensive reasons for this finding, which were reasonably open to it to make based on what was before it (Durairajasingham).
This reveals the true nature of the applicant’s complaint as expressed in the ground of the application. That is, it seeks impermissible merits review and, therefore, does not raise an arguable case for the relief sought (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
The applicant’s specific complaint in ground one relating to the Tribunal’s reference to the Thai stamp in his passport again seeks to argue against the Tribunal’s relevant findings.
The applicant seeks to put before the Court the same assertions that he put before the Tribunal. That is, that a “deceptive migration agency” put the stamp in his passport without his knowledge (“the swindlers agent”). The Tribunal dealt with this assertion (see at [63] at CB 106 to CB 107). The Tribunal accepted the possibility of this happening, but gave reasons as to why this would not assist the applicant. I cannot see legal error in the Tribunal’s analysis and findings here.
In all, therefore, no arguable case is raised in ground one.
In ground three the applicant repeats his reference to the Handbook. The ground “argues” that if an applicant’s account appears credible then he or she should be given the benefit of the doubt.
The applicant’s ground, again, misunderstands the Tribunal’s analysis and findings. The Tribunal found that the applicant’s account was not credible. Such findings on credibility are within its jurisdiction where there is a probative basis for the finding and it is reasonably open to the Tribunal to so find. That is the case in the present circumstances.
Further, the Tribunal was seized of the need to approach its analysis allowing for the appropriate application of the notion of the benefit of the doubt ([53] at CB 104). The Tribunal found the applicant’s circumstances, as presented, were not such as to require it to consider the claims in light of that concept. No arguable case is raised here.
The ground also asserts that it was unfair of the Tribunal not to consider the “negative impact” of his being “misguided by swindlers agent” and did not accept this explanation for the perceived difficulties in his account (“give priority to accept my evidences”).
As set out above, the Tribunal did consider the applicant’s explanation concerning the migration agent, or agency. There were two of them in relation to the second visa application (CB 38 and CB 75). He does not identify which one was the “swindler. Nor whether it was some other agent.
In any event, the Tribunal’s consideration here proceeded on the basis of allowing for the possibility of the agent acting without the applicant’s knowledge. However, its concerns arose from what the applicant himself did, and not the agent ([64] at CB 107). That is, his evidence was that he had caused the making of the applications in circumstances where he knew they contained false information about his identity (the first application) and the absence of any claims to fear harm, in the second ([64] at CB 107).
In all the circumstances, no arguable case for the relief sought is raised in ground three.
It is the case that fraud on the part of a third party may “stultify” the conduct of the review before the Tribunal, even where there is no knowledge of the Tribunal of that conduct (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189). However, despite opportunity the applicant brought no evidence before the Court to support his claim about the “swindlers agent”, or even provide some indication from which an arguable case could be raised (noting again he had the benefit of some legal advice). In the circumstances, this does not raise an arguable case for the relief sought.
Ground two simply takes issue with the Tribunal’s finding

(see [72] – [73] at CB 109) that he would, given certain relevant circumstances, not find it difficult to find employment and live if he were to return to China. These included the claimed differences between the employment environment in China, and the lack of “social assistance and family support”. The Tribunal dealt with these matters and was not satisfied, in addition to its findings that he was not of interest to the authorities, that he would face serious or significant harm on return to China (see [74] – [ 75] at CB 109). The applicant, through this ground, is again seeking impermissible merits review (Wu Shan Liang). No arguable case is raised here.

Conclusion

The grounds of the application do not raise an arguable case for the relief sought by the applicant. Nor, for the sake of completeness, can I see any other issue that would assist the applicant in showing jurisdictional error on the part of the Tribunal on the material before the Court, let alone raise any arguable case. In all, therefore, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 12 September 2014

Corrections

In paragraph 47 the word success was corrected to succeed.