SZTGC v Minister for Immigration
[2014] FCCA 1364
•26 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1364 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all relevant claims in relation to whether the applicant met the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was required to put to the applicant particular country information for comment – whether the Refugee Review Tribunal’s adverse credibility findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474, Migration Regulations 1994 (Cth) reg.2.01 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| Applicant: | SZTGC |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2097 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 26 June 2014 |
| Date of Last Submission: | 26 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ashok Kumar |
| Solicitors for the Respondents: | Ms Sophie Given (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2087 of 2013
| SZTGC |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 20 August 2013 and handed down on 21 August 2013 (“the RRT”).
The applicant claims to be a citizen of the Sri Lanka and of Christian faith and of Tamil ethnicity, who fears harm from Sri Lankan authorities and the Tamil Makkal Viduthalai Pulikal (“TMVP”) in Sri Lanka.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
The applicant arrived in Australia on 18 May 2012 having departed illegally from Sri Lanka by boat.
On 24 August 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 22 October 2012, the Delegate refused the applicant’s application for a protection visa.
On 24 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 21 August 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 6 September 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application in which he stated:
a)The applicant was born in Batticaloa in 1969. He is married with children. The applicant left Sri Lanka by boat in 2012 following a number of incidents which occurred to him since 2008.
b)The applicant was in Dubai in 2008 when officers of the TMVP forced his wife out of the family house to use as an office. The applicant returned to Sri Lanka and appealed to the authorities. Three months later, the TMVP vacated the family home, however showed ongoing hostility to the applicant.
c)The applicant worked in his home town as a trishaw driver, taking passengers for money. In March 2012, the applicant collected a passenger from the local train station, who asked to be taken to the Eelam People’s Democratic Party’s office (“EPDP”). Shortly afterwards, the applicant was stopped by a police officer who asked the applicant where he was taking the passenger. Both the applicant and the passenger responded that they were going to the EPDP. The police officer took them both to the police station.
d)The applicant was assaulted by police officers at the police station and accused of taking the passenger to the TMVP office. The police called the EPDP office and later an official of the EPDP attended the police station. The police eventually released the applicant.
e)The applicant was aware that the Sri Lankan Army was monitoring him while he was transporting passengers. Trishaw drivers are generally perceived by the Sri Lankan Government to be former members of the Liberation Tigers of Tamil Elam (“LTTE”). Aside from the applicant’s ethnicity and the fact that the Sinhalese government was still actively looking for and targeting former LTTE members, the applicant’s fear was exacerbated because of the targeting of the applicant’s co-workers.
f)The applicant decided to illegally flee Sri Lanka in May 2012 because of being harassed and persecuted because of his race.
g)The applicant fears that the government will accuse him of having association with the LTTE. He fears that he will be harmed by the Sri Lankan Criminal Investigations Division (“CID”) and Sri Lankan Army
The Delegate’s decision
On 22 October 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
Before the Delegate, the applicant raised additional claims that he was at risk of significant harm because of past altercations with the TMVP. In particular:
a)In 1987, the Tamil Eelam Liberation Organisation (“TELO”) abducted the applicant from his home and took him to a training camp. The applicant escaped from the training camp and returned to his family home, before moving to Colombo, where he stayed until relocating to Saudi Arabia in 1991.
b)The applicant returned to Sri Lanka in August 2001. He owned and operated a grocery store which was frequently visited by the LTTE who demanded bribes.
c)Following the applicant’s arrival in Australia, he was informed by his wife that members of the CID had been making inquiries regarding members of the applicant’s village who had fled. Other trishaw drivers told the CID that the applicant had fled to Australia.
d)The applicant’s wife informed the applicant that the CID had attended the family home, asking after the applicant and demanding money.
e)The applicant’s wife had received anonymous phone calls demanding money and threatening to kidnap the applicant’s children if their demands were not met. The applicant’s wife made a complaint to the police, but no action was taken.
The Delegate found the applicant’s testimony to be at times unresponsive and inconsistent. The Delegate referred to country information that did not indicate that the population in Valachenai who were forced to make payments to the LTTE between 2001 and 2007 are currently being targeted by the Sri Lankan authorities. The Delegate did not accept that the applicant’s claimed fear was well founded and was not satisfied that there is a real chance that the applicant would be targeted should he return to Sri Lanka for any of the reasons claimed.
The RRT’s review and decision
On 24 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 16 November 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 17 December 2012 to give oral evidence and present arguments.
On 17 December 2012, the applicant attended the RRT hearing and presented evidence.
On 30 December 2012, the applicant’s migration agent submitted the applicant’s passport to the RRT, accompanied by a further written submission.
On 27 June 2013, the RRT invited the applicant to attend a further hearing on 17 July 2013.
On 17 July 2013, the applicant attended the further hearing and gave evidence.
The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The MRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT identified with particularity the country information to which it had regard. The RRT put to the applicant country information for comment.
The RRT rejected the applicant’s core claims for a protection visa on the basis of the adverse findings it made in relation to the credibility of the applicant’s claims and evidence. The RRT found that the applicant was not a witness of truth and had fabricated his core claims.
The RRT’s finding that the applicant was not a witness of truth was based upon inconsistencies, anomalies and implausibilities identified in the applicant’s evidence as to the circumstances of his detention and assault by police in March 2012; the harassment by the TMVP; and, the mistreatment of his wife following his departure to Australia. The RRT noted that the applicant did not mention his core claims in his entry interview and did not accept the applicant’s explanation for failing to do so.
The RRT accepted the applicant’s claim to have been questioned for four hours at the airport upon his return to Sri Lanka in 2008, however found that his subsequent release was indicative of the applicant not being of adverse interest to the authorities at that time.
The RRT also accepted that the applicant was abducted by TELO in 1987, but found that there was no evidence to indicate that the applicant was of continued interest to authorities for that reason. The RRT also did not accept that the authorities had questioned the applicant’s wife.
On the basis of these findings, the RRT concluded that the applicant was not of adverse interests to the Sri Lankan authorities at the time of his departure to Australia.
The RRT did not accept on the available evidence that Tamil auto trishaw drivers were imputed as having a pro-LTTE opinion or that the applicant faced serious harm on the basis of his ethnicity and geographic origin. While the RRT was prepared to accept that the applicant had provided the LTTE with money during the Sri Lankan civil war, it was not satisfied that there was a real chance that the applicant would face harm as the LTTE was a “spent force”. In reaching this finding, the RRT had regard to the applicant’s own evidence that he had not suffered harm in the past for this reason and that he would not be perceived by the authorities to have the “more elaborate links to the LTTE” as described in the United Nations High Commissioner for Human Rights risk profile.
Further, the RRT did not accept on the evidence and material before it that the applicant faced any economic hardship to a sufficient level of severity such that it would threaten his ability to subsist.
The RRT accepted that the applicant would be questioned at the airport were he to be returned to Sri Lanka, and would likely be held on remand in cramped, uncomfortable conditions. The RRT found that the applicant would likely be charged and fined for his illegal departure, although such treatment would not be applied in a discriminatory manner and did not amount to persecution. On the available country information before it, the RRT found that the applicant would be released from remand within a matter of days and that there was no real chance that the applicant would be detained for a prolonged period. The RRT did not accept that the imposition of a fine amounted to serious harm.
The RRT accepted that the applicant may be contacted by authorities for registration following his release from remand, but did not accept on the basis of the country information before it that this constituted a real chance of serious harm. Similarly, on the basis of the evidence before it, the RRT did not accept that the applicant would be targeted for extortion, abduction or suffer other serious harm for the reasons he claimed.
On this basis, the RRT found that the applicant would not face a real chance of serious harm were he to return to Sri Lanka.
The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that, on the basis of its findings of fact, there was no credible evidence before it that he faced significant harm in Sri Lanka. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicants would suffer significant harm.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.
The proceeding before this Court
The applicant was represented before this Court by Mr Ashok Kumar, of counsel.
At the commencement of today’s hearing, the Mr Kumar confirmed that the applicant relied on the grounds contained in an amended application filed on 17 January 2014 as follows:
“Ground 1
The Tribunal committed jurisdictional error when it failed to deal with the issue of whether the Applicant would have complementary protection under s.36(2)(aa) of the Migration Act in respect of extortionists (CB 225 at [5]) and whether there was effective state protection.
Particulars
The Tribunal sated ((CB258.8), RRT decision, at [73]) that “I accept that the applicant paid money to LTTE during the long running civil conflict…” in regard to claimed listed at (RRT decision, at [26]). The Tribunal has committed jurisdictional error when considering protection under s.36(2)(aa) as it has failed to take into account whether the applicant would have suffer significant harm at the hands of (former LTTE) extortionists were he returned to Sri Lanka and whether the applicant would receive complementary protection (conflating this risk assessment with political profile and assessment under s.36(2)(a)). The Tribunal having made the findings failed to deal with the claim. The Tribunal erred in failing to assess whether the particular harm claimed would also be suffered by general population.
Ground 2
The Tribunal breached s.360 of the Migration Act as in respect of material findings on which the decision turned the Applicant was not given adequate opportunity to address the issues and was procedurally unfair.
Particulars
(a) The Tribunal did not give adequate opportunity to explain and was procedurally unfair and thereby breached s.360.
(b) The Tribunal used country information in respect of critical findings that the Applicant would not be harmed upon return to Sri Lanka. The Tribunal has been procedurally unfair as the Tribunal did not give the applicant an opportunity to be heard on these material in breach of s.360.
Ground 3
The Tribunal committed jurisdictional error when it misapprehended the claims made by the Applicant finding that the Applicant was not a credible witness (CB 254 at [53]) and rejecting the applicant’s claims.
Particulars
(a) The Tribunal misapprehended the claims – the Applicant addressed specific matters asked at the entry interview (particularly Part C, CB 14-15) and there is no evidence that adequate opportunity to explain all the claims.
(b) The Applicant filed detailed statement of claims (CB 46-48) which is not inconsistent with the narrow focus at the entry interview.
(c) The Tribunal fell into error in finding inconsistencies.
Ground 4
The Tribunal committed jurisdictional error when it misapprehended the claims made by the Applicant finding that the Applicant was not a credible witness (CB 252 at [43]) and rejecting the applicant’s claims relation to arrest and beating by the Police.
Particulars
The Tribunal misapprehended the claims – the Applicant was separately interrogated- whilst the Applicant was aware of the Police calling EPDP office (transcript p12.9). The Applicant being separately interrogated could not know why the passer was release and all that occurred addressed specific matters asked at the entry interview (particularly Part C, CB 14-15) and there is no evidence that adequate opportunity to explain all the claims.”
Ground 1
As I understood Mr Kumar’s submissions in support of ground 1, the RRT failed to deal with the issue of whether the applicant was at risk of significant harm pursuant to s.36(2)(aa) of the Act in respect of his claims of extortion and whether there was effective state protection.
The RRT’s decision record makes clear that the applicant claimed that he was extorted by the LTTE when he owned his grocery store in 2001 and that demands were made of his wife for money.
Mr Kumar conceded that the RRT’s decision record is accurate.
In considering whether the applicant was entitled to complementary protection pursuant to s.36(2)(aa) of the Act, the RRT’s decision record made a clear finding rejecting the applicant’s claim that his wife had been targeted by any person or entity, and did not accept the applicant’s claim that he faced harm because he had paid money to the LTTE during the war.
Whilst the RRT accepted that the applicant paid money to the LTTE during the civil war, the RRT found that the applicant did not have and never has been perceived by authorities to have more elaborate links to the LTTE. The RRT found that on the applicant’s own evidence he had not ever experienced any harm from any person because he paid money to the LTTE in the past. The RRT found that the LTTE is now a “spent force” in Sri Lanka and, having regard to his profile, the applicant would not be imputed with a pro-LTTE opinion if he returned to Sri Lanka.
There is nothing to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave. The RRT’s decision record makes clear that it raised concerns it had with the applicant’s evidence in specific detail with the applicant at two hearings and noted the applicant’s responses.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the light of the RRT’s rejection of the applicant’s claim of extortion upon his wife and its finding that there is not a real chance that the applicant would face harm because he had paid money to the LTTE during the war, it was not necessary for the RRT to consider whether there was “effective state protection”. Nor was there any obligation on the RRT to assess whether the applicant’s claim of future harm by reason of extortion would be suffered by the general population, as asserted in the particulars of ground 1.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 asserts that the RRT did not give the applicant adequate opportunity to “address the issues” and was procedurally unfair, thereby breaching s.425 of the Act.
It is clear from the Court Book, filed on 6 November 2013 and marked Exhibit 1A, that the applicant was assisted throughout his application for a protection visa by a migration agent. The applicant attended two hearings of significant duration in which he continued to be assisted by his migration agent. Further, the migration agent provided detailed pre and post hearing written submissions to the RRT to which it referred and plainly considered. The RRT noted in some detail the evolution of the applicant’s claims for protection from the statement in his protection visa application to post hearing submissions. At each stage, the RRT noted that the applicant expanded upon his claims.
The RRT found the applicant’s claims to have “shifted” over time. The RRT put its particular concerns about the evolving nature of the applicant’s evidence to him for comment and noted his response. In respect of some of the explanations, the RRT found them to be “contrived and lacking in credibility”, “vague”, “lacking in internal logic” and “otherwise free from plausible or relevant detail.” The RRT did not find the applicant’s various explanations convincing and ultimately found that he had fabricated his core claims.
A fair reading of the RRT’s decision record and certain parts of the transcript of the RRT hearing make clear that the applicant had every opportunity to address the issues.
Ground 2 particular (b) asserted that the RRT used country information in respect of which which it did not give the applicant an opportunity to be heard. Mr Kumar identified the relevant country information as that provided by the United Nations High Commissioner for Human Rights Guidelines, issued on 21 December 2012. However, the RRT specifically noted that it discussed that country information with the applicant.
Otherwise, a fair reading of the RRT’s decision record makes clear that the RRT put to the applicant country information that was inconsistent with the applicant’s claims and noted the applicant’s responses.
In any event, it is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
No other procedural unfairness was referred to by Mr Kumar and none is apparent on the face of the RRT’s decision record or the conduct of its review.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 asserts that the RRT “misapprehended” the applicant’s claims in finding that he was not a credible witness and in rejecting his claims. In support, Mr Kumar referred to the particulars in support of ground 3 which in turn referred to inconsistencies that the RRT found to exist by reason of the evolving nature of the applicant’s evidence.
The RRT noted that care must be taken in placing adverse weight upon inconsistencies between the applicant’s protection claims and the information provided at the entry interview. The RRT also noted the UNHCR guidelines that stated “if significant discrepancies give rise to credibility concerns, the asylum seeker should be given an opportunity to explain or comment.”
However, the RRT identified with particularity the concerns it had about various omissions from the applicant’s claims which it found to be significant and to cast further doubt upon the truthfulness of his subsequent claims as to why he left Sri Lanka. The RRT put the inconsistencies and omissions to the applicant but, as stated above, found the applicant’s various explanations to be unconvincing. As stated above, the RRT was not obliged to accept the applicant’s explanations.
The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Accordingly, ground 3 is not made out.
Ground 4
Ground 4 asserts that the RRT “misapprehended” the claims made by the applicant in finding that he was not a credible witness and in rejecting his claims of arrest and beating by the police.
A fair reading of the RRT’s decision record makes clear that the RRT raised its specific concerns about the applicant’s claims of arrest and beating by the police, having regard to the shifting nature of the applicant’s evidence over time. The RRT noted that in his statement in support of his protection visa application, the applicant did not mention particular aspects of the claims he now made at the hearings before the RRT. The RRT noted the applicant’s responses that when made his written statement in support of his protection visa application, he was scared and not sure whether he should disclose those types of details and that he might not be given a visa.
The RRT found those explanations to be contrived and lacking in credibility. As stated above, the RRT’s adverse credibility findings were open to it on the evidence and materials before it and for the reasons it gave.
Ground 4 is more to be in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, ground 4 is not made out.
Conclusion
A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at two hearings; and, had regard to all material provided in support, including both pre and post hearing written submissions provided by the applicant’s migration agent. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 26 June 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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