SZURM v Minister for Immigration

Case •

[2016] FCCA 494

•

14 March 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 494
Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal’s findings were reasonably open to it – whether Tribunal failed to consider the applicants’ claims – whether the Tribunal complied with s.424AA of the Migration Act 1958 (Cth) – allegation of bias – whether the Tribunal complied with s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 425, 476, pt. 7
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 124 ALR 265
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235
SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339
First Applicant: SZURM
Second Applicant SZURN
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1916 of 2014
Judgment of: Judge Nicholls
Hearing date: 5 February 2016
Date of Last Submission: 5 February 2016
Delivered at: Sydney
Delivered on: 14 March 2016

REPRESENTATION

First Applicant: In Person
Second Applicant: In Person
Counsel for the Respondents: Mr J Kay Hoyle
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The second respondent is amended to read “Administrative Appeals Tribunal”.

  2. The application made on 10 July 2014 is dismissed.

  3. The applicants pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1916 of 2014

SZURM

First Applicant

SZURN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 July 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 13 June 2014, which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

  1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“Court Book” – “CB”).

  2. The applicants are citizens of the People’s Republic of China (“China”) and are husband (“the applicant”) and wife (“the second applicant”). The applicants arrived in Australia on 16 June 2012 on visitor visas. The applicants applied for protection visas on 26 June 2012. The second applicant applied as a member of the applicant’s family unit and made no claims to protection in her own right (CB 1 to CB 32). The applicants were assisted by a registered migration agent (CB 33 to CB 35). The applicant provided a Statutory Declaration in support of the application (CB 44 to CB 52).

  3. The applicant’s claims to protection can be summarised as follows. He feared that he would be arrested, persecuted mentally and physically, and killed, because he “made trouble” for some “high-ranking” Public Security Bureau (“PSB”) officials in Zhejiang Province, China. Further, that the authorities believe that he is “anti-government and anti-Communist party”, and that he had been arrested twice (CB 44 to CB 52, CB 86 to CB 96 and [2] at CB 165).

The Delegate

  1. The delegate of the Minister refused the grant of protection visas to the applicants on 2 October 2015 (CB 82 to CB 96). The delegate could not be satisfied that the applicant would face a real chance of persecution if he returned to China and could not find that state protection would not be available, if needed. The delegate further found that there were not substantial grounds for believing that the applicant would suffer significant harm on return to China (CB 95).

The Tribunal

  1. The applicants applied to the Tribunal on 29 October 2012 for review of the delegate’s decision (CB 97 to CB 103). The applicants were again assisted by their registered migration agent (CB 97). The applicant provided a further Statutory Declaration to the Tribunal on 9 May 2014 indicating that he maintained the claims set out in his protection visa application (CB 119).

  2. The applicants, and their representative, attended a hearing with the Tribunal on 16 May 2014 (CB 121 to CB 123). The applicants provided further documents at the hearing in support of their application (CB 124 to CB 157). The applicant provided a further Statutory Declaration to the Tribunal on 19 May 2014 (CB 158 to CB 160).

  3. The Tribunal affirmed the delegate’s decision on 13 June 2014 to refuse the applicants the grant of protection visas (CB 164 to CB 174). The applicant’s claims were set out by the Tribunal in its decision record ([9] at CB 165 to [16] at CB 169).

  4. The Tribunal did not find the applicant’s claims to be credible ([17] at CB 169). The Tribunal further found that the applicant’s claims about his experiences in China, and the reasons that he feared persecution on return, were “unsupported by evidence and based on supposition” ([18] at CB 169). The Tribunal found his credibility to be “undermined” in a number of ways.

  5. The Tribunal found that the applicant had given “inconsistent evidence” on key issues regarding his departure from China, including, who he said had assisted him with his travel arrangements ([19] at CB 170):

    “…variously a friend who worked at travel agency and his wife’s classmate (paragraph 9.j); who told them how to get through airport when leaving Shanghai – variously his wife’s classmate, his cousin or someone else with high level support (paragraph 9.l) and the travel agent they used...”

  6. The applicants made “no comment” on information inconsistent with their claims, that they had used a travel agency titled the “National Travel” (Guo Luyou) agency as told to the Tribunal and “China Travel service” as told to the department, compared to a report submitted to the Australian Consulate-General in Shanghai after they had absconded from their tour, which showed that their travel was arranged with
    “V-Tour Travel Service Zhejiang Co. Ltd”. The agencies named by the applicants were not mentioned in the report to the Consulate ([19] at CB 170).

  7. The Tribunal found that the applicant had given “confused and shifting” evidence about his passport ([20] at CB 170). The Tribunal found the applicant’s claim, that his passport was not confiscated when he was arrested twice in China, inconsistent with country information cited in the delegate’s decision, that indicated that the PSB seized the passports of people they planned to arrest. Further, that the Tribunal was not persuaded by the applicant’s “protestations” that this did not happen in China and that the applicant knew of this as he had been arrested twice. The Tribunal found that the applicant’s evidence was confused and inconsistent on this issue because “he was never arrested”. The Tribunal gave no weight to the applicant’s document, “purporting to be an arrest warrant”, in light of country information, cited in the delegate’s decision, about the “wide availability of false documents” in China ([21] at CB 170).

  8. The Tribunal found it “implausible” that the applicant would have been able to leave China legally if he was “of interest” to the authorities. The Tribunal was not satisfied that this issue could be overcome by the “bribery of a woman in the travel agency”, as was claimed. The Tribunal noted that the applicant had already provided inconsistent evidence on this point. Further, the Tribunal was not satisfied that the “exit control” system at the departing airport could be thwarted by the use of a “particular gate”, regardless of who told them of this gate ([22] at CB 170).

  9. The Tribunal’s concerns were “compounded” by the inconsistent dates provided by the applicants as to the date of their marriage, respectively, 3 May 2012 and 21 September 2004. The Tribunal considered the applicant’s explanation in his post-hearing submissions, that he had divorced his wife after he was released from jail to protect her from persecution by “activists”, but had later remarried her as “she was unhappy”, and due to this they considered their marriage date “21 September 2004”. The Tribunal found this to be a “rationalisation after the fact”, particularly given that this was only mentioned by the applicant after the “evidence was exposed” ([23] at CB 170 to CB 171).

  10. Further, the Tribunal found it implausible that if the applicant had been released from a mental hospital through forms of bribery, he would “risk” drawing attention to himself by the authorities by registering a divorce one day, and remarrying soon after. The Tribunal noted that the “risk” to activist’s families, as cited in the country information proffered by the applicant, was attached to those who had “significant political profiles”, which it found the applicant did not “share”. This was so, even if it were to accept the applicant’s claim that he led, and was arrested over, work protests in 2001, and was planning a sit-in outside the PSB in February 2012. The Tribunal, in any event, did not accept these claims ([24] at CB 171).

  11. The Tribunal was “concerned” about the veracity of the wife’s evidence that she had experienced “no difficulties” with the authorities, despite giving birth to a child out of wedlock, and before the permissible age ([25] at CB 171). The Tribunal found, in light of the two wedding dates provided, that the applicants had provided “false information” about their marriage status. The Tribunal was not satisfied that their real marriage date was in 2004, or that they had two children ([26] at CB 171).

  12. The Tribunal found that ([27] at CB 171):

    “Considered together, the reasons discussed above lead the Tribunal to find that the applicants have not been truthful about their experiences in China and the reasons they fear returning to that country; or that any of their evidence can be relied upon. The Tribunal is not satisfied that the applicant was ever arrested, imprisoned; held in a mental hospital in China; or ordered to report to police; for any anti-Government or anti-Communist Party activities or because he created trouble for senior PSB officials linked to the Black Society’; nor that he was subjected to cruel and inhuman torture, or mistreatment during such detention, as claimed. The Tribunal is not satisfied that the applicant was of interest to the Chinese authorities at the time he left China; or that his family has been harassed since he left China over these issues, as claimed. It follows that the Tribunal is not satisfied that if he returns to China, the applicant will be arrested, persecuted physically and mentally and suffer the death penalty because he ‘made trouble’ for some high-ranking PSB officials in Zhejiang province; participated in anti-Government and anti-Communist Party activities; or damaged the reputation of China in his year overseas.”

  13. The Tribunal was not satisfied that the applicants satisfied the criteria set out in ss.36(2)(a) or (aa) of the Act for the grant of a visa.

Application before the Court

  1. The final orders sought by the applicants and the grounds of the application are set out in an attachment to their application, and are in the following terms:

    “Orders sought by Applicant

    1. I don't agree with the decision of DIBP and RRT for it is unfair to me and my wife by failing to take into a thorough and necessary consideration for our fear returning to origin where we experienced overwhelming threat, traumatic stress and persecution of Chinese police.

    2. RRT's decision considered our statements, explanation given in vain, especially the fact of my detention, inhuman torture and mistreatment and harassment by police in origin.

    3. RRT gave no good consideration to prudently consider our vulnerable situation in origin with a family and children who are negatively implicated due to our background record.

    4. RRT failed consideration the adverse impact of our children in origin due to our escape oversees which create enormous difficulties, strains and pressure in their social life.

    5. RRT undertake an unfair review to our testimonies by picking up some slight inconsistencies of our statements on particular date and description on past event, pushing us in tense and stressful, and never gave us an opportunity to comment on outstanding issues may occur.

    …

    The Grounds of the Application are:

    1. As Chinese citizen, my wife and I came to Australia on tourist visa and applied for protection as I have suffered hard experience of being detained, tortured, mistreated and bullied by police and ‘black force’ when defending my right and interest for salary payment with authority in origin.

    2. I have been actively involved in factory protest defending my right for a fair payment by employer and end up in detention.

    3. I have tried my best effort through personal contact and relation, preparing documents for a safe leaving out of China by paying extra money to the parties concerned.

    4. I have two children in origin who have significantly impacted due to my background and currently suffered bias and difficulties in social life.

    5. We have a strong fear to return and seek a protection from Australian government for a fair go and surviving right, being avoided to be persecuted, and mistreated again that cumulate a humanitarian crisis in origin.”

    [Errors in the original.]

Before the Court

  1. The applicants first attended before the Court on 3 September 2014 and were assisted by an interpreter in the Mandarin language. A number of orders were made on this day for the conduct of this matter. The applicants were provided with the opportunity to file any further evidence by way of affidavit and any amended application. The applicants attended at a mention of their matter on 11 March 2015 with a Registrar, where they were again assisted by an interpreter in the Mandarin language, where the matter was set down for hearing.

  2. At the final hearing, the applicants appeared in person and were again assisted by an interpreter in the Mandarin language. No further material was filed by the applicants in support of their application. They confirmed before the Court that there was nothing further they wished to provide. The Minister had filed written submissions.

Consideration

  1. Before the Court, the applicants raised a number of matters. First, the applicant complained that, although he had told the Tribunal that he had been imprisoned in China, the Tribunal did not ask him about this. The Tribunal’s decision record noted this claim (at [9](a) at CB 165).

  2. Although the applicant did not provide any particulars or details about this, I note that he claimed that he had been arrested and detained for six and a half months in 2001 on charges of “disturbing public order” (see CB 45).

  3. The applicant also claimed that he had been detained from 12 to 29 February 2012, after being accused by the police of being “anti-government” (see [15] at CB 49). The Tribunal also recorded this claim in its decision record ([9](f) at CB 166).

  4. The Tribunal found that it was not satisfied that the applicant had ever been arrested or detained in China. The basis for the Tribunal’s conclusion in rejecting the large number of factual assertions made by the applicants, was that the Tribunal found that the applicants had not been truthful about their experiences in China and the reasons that they feared harm on return ([27] at CB 171).

  5. As the Tribunal explained, it arrived at this conclusion about the applicants’ credibility based on a number of factors which were set out in the paragraphs preceding [27] (see, in particular [17] at CB 169 to [26] at CB 171). None of the Tribunal’s relevant reasoning leading to the adverse credibility finding related to the applicant’s claimed imprisonment.

  6. Rather, the Tribunal reached that view based on the evaluation of their evidence, and its findings of inconsistency in their evidence in relation to the “key issues” of their departure from China and their travel arrangements ([19] at CB 170), the applicant’s evidence about how he obtained his passport ([20] at CB 170), their evidence about their marriage status, which the Tribunal saw as a key aspect of their identity ([23] at CB 170 to CB 171), and the second applicant’s evidence of not having experienced any difficulties with the authorities, despite having a child “out of wedlock and before the permissible age” ([25] and [27] at CB 171).

  7. The applicants have not put a transcript of the Tribunal hearing before the Court, despite opportunity to do so. In this circumstance, the Tribunal’s account of what occurred at the hearing is the only relevant evidence before the Court.

  8. Specifically in relation to the claim that he had been detained, the Tribunal found that he had never been arrested, and therefore had not been detained. The Tribunal’s finding was based, in part, on the applicant’s evidence concerning his claims that the Chinese authorities had been, and continued to be, interested in him (see [14](a) at CB 168). The Tribunal found the applicant’s evidence to be inconsistent with country information, that the authorities seized the passports and identity cards of such persons ([21] at CB 170). The Tribunal’s references to its rejection of the applicant’s evidence, which it found to be “confused and inconsistent” in this regard, leads to the view that these matters were discussed at the hearing.

  9. The applicant’s further explanation of his complaint that the Tribunal did not ask him about being imprisoned, was that his “evidence showed clearly that [he] was released from the prison”. In context, this could only have been a reference to his own evidence, which the Tribunal rejected. In this light, the applicant’s complaint seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

  10. In all, there was no need for the Tribunal to ask the applicant about his imprisonment, given its findings that he had not been arrested and imprisoned. These findings were reasonably open to the Tribunal on what was before it.

  11. Second, the second applicant stated before the Court that her husband had obtained a “scar on his body”. It was not clear that this had been raised with the Tribunal. At best, I understood the complaint to be that her husband wanted to tell the Tribunal about how he had been mistreated in prison in China. Her complaint was that he was not allowed, presumably by the Tribunal, to tell this “story”. Again, what is set out above stands in answer to this complaint.

  12. Third, the second applicant complained about the Tribunal’s consideration of their marriage and divorce. This complaint appears to be related to the following.

  13. The applicants travelled to Australia as part of a tour group in 2012. They “absconded” from this group on 16 June 2012. The Tribunal recorded in its decision record that the relevant tour company had submitted a report to the Australian Consular-General in Shanghai about this. The report stated, amongst other things, that the applicants had told the tour company they were travelling to Australia on their honeymoon, and had provided a marriage certificate dated 3 May 2012 ([10](a) at CB 167). Further, that the name of the agency that arranged the travel was not the name of the agency given by the applicants to the Australian authorities ([10](b) at CB 167). The Tribunal reported that it drew this to the applicants’ attention at the hearing. It noted with them that this was inconsistent with information they had provided in their protection visa application ([11] at CB 167 to CB 168).

  1. The Tribunal noted that it utilised the provisions of s.424AA of the Act to put this to the applicants, explain its relevance to the review, in that it raised doubts about their truthfulness, and gave them the opportunity to comment ([11] at CB 167 to CB 168).

  2. The Tribunal reported that the applicants responded and gave an explanation for the inconsistencies ([12] – [13] at CB 168). On the available evidence, therefore, I do not accept the second applicant’s complaint that they were not given the opportunity to comment on the matter of their marriage.

  3. The Tribunal made findings in relation to the travel agency that assisted the applicants ([19] at CB 170) and the matter of their marriage ([23] at CB 170 to CB 171). These findings were reasonably open to the Tribunal on what was before it. In this light, therefore, the applicants’ complaint again seeks impermissible merits review.

  4. Fourth, the second applicant also made reference to not having received a recording of the Tribunal hearing. She provided no explanation, let alone evidence, to explain what she meant by this.

  5. In any event, the application to the Court was made on 10 July 2014. The applicants attended for directions on 3 September 2014 and 11 March 2015. There is no record of them having raised any complaint in this regard. If the second applicant’s concern was that the recording was required in preparing for their case, they have had ample time to have taken steps to secure any such recording from the Tribunal. Nor did the second applicant seek further time from the Court by way of an adjournment to obtain the recording. In the circumstances, I was satisfied that the applicants were given a reasonable opportunity to prepare for the final hearing.

  6. The complaints in the application to the Court are contained under two headings. What is of immediate note is that the orders sought by the applicants are not in any relevant recognisable form as orders that can be made by the Court. I agree with the Minister that the orders sought appear to be complaints about the Tribunal’s decision.

  7. Further, even if the orders were to be read as the grounds on which the applicants seek to rely, they, and indeed what appears under the heading of grounds, are, in essence, an expression of disagreement with the Tribunal’s decision and some of its findings, rather than proper assertions of jurisdictional error on the part of the Tribunal.

  8. “Order 1”, in part, expresses disagreement with the decision of, in effect, the delegate. Given this was a decision reviewable under Part 7 of the Act, this Court has no jurisdiction to review the delegate’s decision (s.476 of the Act).

  9. For the remainder, the complaint is that the Tribunal did not give “thorough and necessary consideration” to the claim to fear harm on return to China. The evidence before the Court reveals that this complaint is baseless. The applicants’ evidence was set out and referred to at length by the Tribunal. Both applicants were given a reasonable opportunity to explain their case.

  10. Plainly, the Tribunal had concerns with certain central parts of the applicants’ claims. However, the evidence reveals that the Tribunal put its difficulties with their evidence to them, and they were given the opportunity to respond. The Tribunal’s analysis reveals that it considered all their claims and each aspect of the claims.

  11. No unfairness is revealed in circumstances where the Tribunal found inconsistencies in their evidence and made findings adverse to them which were reasonably open to the Tribunal on what was before it. The complaint does not rise above a request for the Court to engage in impermissible merits review (Wu Shan Liang).

  12. “Order 2”, similarly, is no more than an expression of disagreement with the Tribunal’s findings and conclusion. There is no obligation on the Tribunal to uncritically accept what an applicant says (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 124 ALR 265). The Tribunal’s evaluation of the evidence sits at the heart of its relevant statutory task.

  13. “Order 3” and “Order 4” complain that the Tribunal failed to properly consider their claims involving their children and family. As the Minister submits, the applicants, on the evidence before the Court, did not advance separate or distinct claims before the delegate or the Tribunal concerning their children.

  14. The applicant stated in his claims that the couple had two children, both of whom were said to have been left in China. The second applicant made reference to one child said to have been born out of wedlock and while she was under the legal age for having children. I agree with the Minister that as there was no distinct claims concerning children no obligation arose for the Tribunal to consider their situation, other than as the children of the applicants.

  15. In any event, the Tribunal found that the applicants did not have any children ([26] at CB 171). This was a finding reasonably open to the Tribunal and for which it gave reasons. In these circumstances no further consideration of the claim involving children was necessary, or even possible.

  16. “Order 5” makes a number of complaints. First, the applicants assert that the Tribunal was unfair because it identified “slight inconsistencies” in their statements.

  17. It is clear that the Tribunal did identify and rely on a number of inconsistencies in the applicants’ evidence. The evaluation of that evidence is a matter for the Tribunal. It is not for the Court to evaluate the claims to fear harm and reach a conclusion on whether the protection visa should be granted. In any event, on any objective and fair reading of its decision record, the inconsistencies identified by the Tribunal cannot be described as “slight”. The Tribunal was entitled to make the findings it made, and it gave reasons probative of the material before it. No error is revealed here.

  18. Second, the applicants claim that the Tribunal’s conduct at the hearing involved “pushing us in tense and stressful [way], and never gave us an opportunity to comment on outstanding issues may occur” (see [5] of the “Orders sought by the applicant” in the application to the Court).

  19. The Tribunal is obliged, pursuant to s.425 of the Act, to invite the applicants to a hearing which should be a meaningful opportunity for the applicants to put forward their case. The Tribunal’s obligation at the hearing extends to identifying the issues in the review, which were not live issues as a result of the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152).

  20. The applicants’ complaint has a number of possible elements in light of this. One, the Tribunal is required to give the applicants the opportunity to comment on the issues in the review. However, contrary to what appears to be the complaint now, the evidence before the Court reveals that the Tribunal did do this, including the opportunity to provide further comments and evidence through their representative. I note in this regard that the applicants’ representative was given additional time to make further submissions following the hearing ([15](c) at CB 169). Further, the applicants provided a response which the Tribunal took into account ([16] at CB 169 and [23] at CB 170 to CB 171).

  21. Two, this may be some attempt to assert bias on the part of the Tribunal. Given the serious nature of any such allegation such a complaint must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and [127]). The applicants have not achieved the first part of that requirement.

  22. In any event, as the Minister submits, it is a “rare and exceptional case” where bias can be made out on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). There is no evidence to support, let alone find that the Tribunal did not bring an open mind to the proceedings and was not open to persuasion.

  23. Three, the complaint may also be that the applicants were prevented from giving their evidence because of the Tribunal’s conduct. Again, there is no evidence to support any such claim. On the available evidence the applicants were provided with a meaningful opportunity to give their evidence. The Tribunal is entitled to test their claims in a robust manner (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80).

  24. Grounds one, two, three and five of the application do not rise above an invitation to engage in impermissible merits review. No jurisdictional error is revealed. The complaint in ground four has been dealt with above.

  25. At the hearing before the Court, I drew the Minister’s attention to [18] of the Tribunal’s decision record (at CB 169):

    “The applicant’s claims about his experiences in China and the reasons he fears returning to that country are unsupported by evidence and based on supposition. As put to the applicant at hearing, under these circumstances, a high premium must be put on his credibility and truthfulness. However, these were undermined in a number of significant ways.”

  26. The applicants were legally unrepresented before the Court. In this context, I asked for the Minister’s submissions as to what the Tribunal meant at [18] (at CB 169). In particular whether the Tribunal was saying that the applicant’s claims could not be believed in the absence of corroborative evidence. In particular, whether the Tribunal’s reference to a “high premium” could be read as suggesting that the Tribunal placed a disproportionate emphasis on the lack of corroboration (Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041, SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235 and SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339).

  27. Ultimately, I agree with the Minister that on a fair reading, what the Tribunal sought to express here was that this was a case that turned on the applicants’ credibility.

  28. The Minister referred the Court to the following. First, the applicant had given the Tribunal a document which was said to be an “arrest warrant” dated 12 February 2012. The Tribunal gave this document no weight and explained its reason for so doing ([21] at CB 170).

  29. Second, that the applicants had provided, at the hearing, a United States Congressional report on China (CB 124 to CB 147). The Tribunal took this into account where relevant (see [24] at CB 171 – “the country information cited by the applicant”).

  30. With this background, the Minister’s submission was that what the Tribunal meant at [18] (at CB 169) was that, save for those two pieces of documentary material, which the Tribunal considered, there was no further documentary material before it that was corroborative of the applicant’s oral evidence and written claims.

  31. I agree with the Minister that a fair reading of [18] (at CB 169) is that given that there was no other evidentiary support for his claims and given that his fears of future harm were based on “supposition”, the applicant’s case therefore turned on his own evidence and the truthfulness of that evidence.

  32. While the use of the phrase “high premium” may be seen as infelicitous, I accept that, on a fair reading, what the Tribunal meant was that the evaluation of the applicants’ own evidence was central to its deliberation in circumstances where there was nothing else before it to support his claims. That is, that the disposition of the applicant’s case, in the circumstances presented, rested or turned on the credibility of the applicant’s own evidence. No legal error is revealed here.

Conclusion

  1. In all, the applicant’s grounds do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 14 March 2017

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