SZUUI v Minister for Immigration

[2016] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1331

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered all claims made by the applicants – whether the Administrative Appeals Tribunal’s decision was made in accordance with the requirements of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal denied procedural fairness to the applicants – whether the Administrative Appeals Tribunal assessed the applicants’ claims in a manner that was required under s.414 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 414, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
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
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
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

First Applicant: SZUUI

Second Applicant: SZUUJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2043 of 2014

Judgment of: Judge Emmett

Hearing date: 1 June 2016

Date of Last Submission: 1 June 2016

Delivered at: Sydney

Delivered on: 1 June 2016

REPRESENTATION

The applicants appeared in person with the assistance of a Gujarati interpreter.

Solicitor for the Respondents: Mr Lenny Leerdam
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2043 of 2014

SZUUI

First Applicant

SZUUJ

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. 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 25 June 2014 and handed down on 26 June 2014 (“the Tribunal”).

2. The first applicant is a citizen of India. He claims to be a supporter of the Congress Party, who fears harm from members of the Bharitiya Janata Party (“BJP”) in India (“the Applicant”). The second applicant is the wife of the Applicant and was included in the Applicant’s application for a protection visa as a member of his family unit. The second applicant’s claims are wholly dependent on those of the Applicant.

3. 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 Tribunal’s review and decision.

Background

1. On 22 February 2013, the Applicant arrived in Australia on a Tourist visa issued on 14 January 2013.

2. On 8 April 2013, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 19 November 2013, the Delegate refused the Applicant’s application for a protection visa.

4. On 16 December 2013, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 26 June 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 22 July 2014, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. 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).

3. Section 36(2)(a) 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”).

4. 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.”

5. 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.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. 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.

8. 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.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal 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.

10. 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.

11. 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

1. The Applicant provided a statement in support of his protection visa application in which he stated:

   a)He worked for his father’s auto consultant business in India. His father was involved in a local business committee and was a member of the Congress Party.

   b)One of his father’s business partners, Mr C, joined the BJP and was elected as a member for the Zila Panchayat district.

   c)Mr C subsequently demanded political donations from his father, which was refused. Mr C also tried to coerce his father to sell the business to him for a minimum price, which was also refused. His father subsequently sold the business to a third party.

   d)When the Applicant started his business, BJP members asked him for political donations. When donations were refused, the BJP members harassed him and threatened to kill him.

   e)In a monthly business committee meeting, he raised these issues with other business owners and tried to put an end to political donations to the BJP. He invited local newspaper reporters to report on these issues. After the committee meeting, he received a phone call from a local BJP leader, who threatened to kill him.

   f)He moved from India to the UK to avoid harassment from BJP members.

   g)After he returned to India, he received more threats and had to close his business. On several occasions, his house was sprayed by bullets at night.

   h)He was scared to leave the house and was mentally depressed.

   i)His father moved to another place with the Applicant’s children. He is worried about his safety should he return to India.

The Delegate’s decision

1. On 3 October 2013, the Applicant attended an interview with the Delegate.

2. The Delegate found that the Applicant’s evidence at the interview was inconsistent with the claims that were made in his protection visa application.

3. The Delegate also found that the Applicant could relocate to another part of India if he felt unsafe in his local area.

4. Accordingly, on 19 November 2013, 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.

The Tribunal’s review and decision

1. On 16 December 2013, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his review application.

3. On 13 May 2014, the Tribunal wrote to the Applicant informing him that the Tribunal 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 24 June 2014 to give oral evidence and present arguments.

4. On 24 June 2014, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal 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.

6. The Tribunal 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 Tribunal identified with particularity the country information to which it had regard and put that country information to the Applicant for comment.

7. The Tribunal noted that the Applicant’s evidence at the Tribunal hearing was inconsistent with the Applicant’s statement in support of his protection visa application in four major aspects.

8. First, the Tribunal noted that the Applicant gave inconsistent evidence about the dispute between his father and his father’s former business partners. At the Tribunal hearing, the Applicant gave evidence that although his father’s business partners did not invest time in the business, they forced his father to continue operating the business. The Applicant also claimed that he and his father were assaulted by his father’s business partners and, as a result, his father sold the business to an associate of Mr C. The Tribunal noted that these claims were inconsistent with the claims made in the Applicant’s protection visa application. The Tribunal found that, when these inconsistences were put to the Applicant for comment, the Applicant could not provide adequate explanations.

9. Secondly, the Tribunal noted that the Applicant gave inconsistent evidence about the Applicant’s new business, which he claimed to have started after the sale of his tractor business. The Tribunal found that the Applicant could not adequately explain the discrepancies that were identified by the Tribunal. Accordingly, the Tribunal found that the Applicant was manufacturing evidence.

10. Thirdly, the Tribunal noted that at the Tribunal hearing, the Applicant failed to mention that he had engaged local newspaper reporters to report on the corrupt conduct of Mr C. The Tribunal found that the Applicant could not adequately explain this inconsistency.

11. Lastly, at the Tribunal hearing, the Applicant admitted that his house had not been subjected to any drive-by shooting. The Applicant asserted that he thought that the people making threats to him may have weapons. The Tribunal found this evidence to be fundamentally different to the Applicant’s written claims. 

12. In the circumstances, the Tribunal found that the Applicant was not a witness of truth and rejected all his claims for protection.

13. Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the Applicant would suffer harm for a Convention related reason were he to return to India, that the Applicant did not have a well-founded fear of persecution in India and for this reason the Applicant was not a person to whom Australia owed protection obligations under s.36(2)(a) of the Act.

14. The Tribunal also considered whether the Applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone in India had threatened to harm the Applicant. Accordingly, the Tribunal found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to the receiving country, India, there is a real risk that the Applicant would suffer significant harm.

15. 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 Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Gujarati interpreter. 

2. On 4 November 2014, the Applicant attended a directions hearing before me. At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

3. I also explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.

4. The Applicant confirmed that he wished to continue with the application for judicial review. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

5. The matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 19 November 2014 on the basis that the grounds of the application did not disclose an arguable case for the relief sought. On 13 November 2014, the applicant filed an Amended Application.

6. At the hearing on 19 November 2014, the matter was set down for final hearing today.  The Applicant was given leave to file and serve a Further Amended Application and any further evidence and submissions in support.

7. At the commencement of today’s hearing, the Applicant confirmed that there have been no other documents filed by him or on his behalf, either in accordance with the directions made by the Court or otherwise. The Applicant also confirmed that he had no further documents to provide to the Court in support of his application.

Amended Application

1. The Applicant confirmed that he relied on the grounds contained in an Amended Application, filed on 13 November 2014, as follows:

   “1. The Second Respondent committed jurisdictional error by failing to address the applicant's claims in the way it was made;

   a. The applicant stated in his protection visa that he was a businessman by profession in India.

   b. The Tribunal did not consider the way he claimed that his father’s business partner who was a leader of BJP, threatened to kill the applicant because of his affiliation with Congress party and the applicant sold the business to the third party.

   c. The Tribunal did not consider that the applicant suffered violence prior to his departure from India.

   d. The Tribunal member did not consider that the applicant and his father were attacked and beaten by his partner and men working for [Mr C].

   2. The Tribunal had no jurisdiction to make the said decision because “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.”

2. Before the grounds were interpreted for the Applicant and before inviting the Applicant to say whatever he wished in support, I explained to the Applicant that the role of this Court is very different to that of the Tribunal. I explained that it is not for this Court to reconsider the Applicant’s claims and make different factual findings or reach different conclusions.  I explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to its jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal, rarely, by itself, establishes such a mistake.

3. Each of the grounds of the Amended Application was then interpreted for the Applicant, and he was invited to say whatever he wished in support of those grounds and in support of his application generally.

Ground 1 of the Amended Application

1. Ground 1 asserts that the Tribunal failed to address the Applicant’s claims that: his father’s business partner, Mr C, (who is a leader of the BJP), threatened to kill the Applicant because of his affiliation with the Congress party; that the Applicant sold the business to a third party; that the Applicant suffered violence prior to his departure from India; and, that the Applicant and his father were attacked and beaten by his father’s business partner and the men working for Mr C.

2. In support of Ground 1, the Applicant said that everything he told the Tribunal was true, that Mr C was his father’s business, and that Mr C continues to be the district chairman and “an enemy of [his] father’s business partner”. 

1. The Tribunal’s decision record makes clear that the Tribunal discussed with the Applicant its concerns about inconsistencies in the Applicant’s written and oral claims with him at the hearing and noted his responses.  Ultimately, the Tribunal was not persuaded by the various explanations given by the Applicant. The Tribunal found that when discrepancies were put to the Applicant for comment, the Applicant displayed a tendency to adopt or introduce a new account of events to conceal those discrepancies.  Ultimately, the Tribunal found that the applicant was not a witness of truth.

2. The Tribunal ultimately rejected comprehensively the applicant’s claims to fear harm from Mr C and Mr C’s associates. The Tribunal rejected the Applicant’s claims that his father operated a business with Mr C, that his father was in dispute with Mr C and another business partner, that the business partners and people associated with them threatened and attacked the Applicant and his father, and that any of the business partners were powerful in any way, including through political or public positions, as the Applicant had claimed.

3. The Tribunal found the Applicant’s evidence about his father’s tractor business to be false. Further, the Tribunal rejected the Applicant’s claim that his father began a different business after the Applicant left India, and that his father again encountered harm from Mr C as a result of starting the new business.

4. The Tribunal did not accept as credible the claim by the Applicant that he continued to be threatened or harmed in any way by Mr C, or anybody associated with Mr C, after the alleged sale of the business in July 2012.

5. The Tribunal accepted that the Applicant travelled briefly to the United Kingdom in 2012. However, the Tribunal disbelieved the Applicant’s claim that he travelled there due to a fear of harm in India. The Tribunal found that there was no credible evidence as to why the applicants left India to come to Australia, and why they did not wish to return to India.

6. The Tribunal noted the Applicant’s claims that the harm he suffered in India left him mentally depressed and psychologically damaged. However, the Tribunal rejected these claims as it did not accept that the Applicant was harmed in India.

7. The Tribunal also rejected the Applicant’s claim that he and his father were involved with the Congress Party in India. Further, the Tribunal rejected the claim that the Applicant’s father and the applicants’ children lived together in a different town out of fear of harm from Mr C. The Tribunal found that there was no credible evidence before it that the applicants, their children or any member of the Applicant’s family was ever harmed by anyone in India, or that anyone in India wished to harm them.

8. The Tribunal concluded that the applicants did not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act for the grant of a protection visa.

9. The Tribunal’s decision record makes clear that it considered the Applicant’s claims of harassment from Mr C, and as stated above, rejected them as being untrue based on its finding that the Applicant was not a credible witness.

10. The Tribunal’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 Tribunal (see 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 Tribunal] 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).

11. Accordingly, Ground 1 of the Amended Application is not made out.

Ground 2 of the Amended Application

1. Ground 2 of the Amended Application asserts that the Tribunal had no jurisdiction to make its decision because “reasonable satisfaction” was not arrived at in accordance with the requirements of the Act.

2. I asked the Applicant if he could explain what he meant by that complaint, or whether he had anything to say in support. The Applicant said no more than that the Tribunal did not accept what he said at the time. Ground 2 is otherwise wholly unparticularised and does not identify any error capable of review by this Court.  As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. 

3. In any event, the Tribunal clearly had jurisdiction to make the decision. In circumstances where the Tribunal was not satisfied that the Applicant met the criteria for the grant of a protection visa, s.65(1)(b) of the Act mandated that a protection visa be refused.

4. Accordingly, Ground 2 of the Amended Application is not made out.

Initiating Application

1. In circumstances where the Applicant was unrepresented, I asked the Applicant whether he continued to rely on the grounds of his initiating application, filed on 22 July 2014. The Applicant confirmed that he did rely on those grounds. They are as follows:

   “1. The Tribunal denied the applicants procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.

   2. The Tribunal's decision was unjust and made without taking into account the full gravity of applicant's circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from [Mr C].

   3. The Tribunal failed to accord “procedural fairness” to the Applicant because of the little weight it give to the claim of the applicant because of the Applicant's inconsistencies in the application of the protection visa.

   4. The Tribunal failed to assess the applicants claim in a manner the was required as mandatory under section 414 of the Migration Act 1958. In doing so it applied the law incorrectly and committed jurisdictional error.”

   (Errors in original).

2. Each of those grounds was interpreted for the Applicant and he was invited to say whatever he wished in support. 

Ground 1 of the Initiating Application

1. In Ground 1 of the initiating application, the Applicant appears to make three complaints: that the Tribunal denied the applicants procedural fairness by reaching adverse conclusions; that the Tribunal’s conclusions were not obviously open to it on the known material; and, that the applicants were not given an opportunity to be heard in respect of those matters. 

2. The Applicant had nothing further to say in support of Ground 1.

3. A bundle of relevant documents was tendered by the solicitor for the first respondent, Mr Leerdam, and marked ‘Exhibit 1R’. Exhibit 1R makes clear that the Applicant was invited to attend a hearing before the Tribunal on 13 May 2014 in accordance with the relevant legislative scheme. The Applicant did not make a complaint that the invitation was not issued in accordance with that scheme.  As stated above, the Tribunal’s decision record makes clear that the matters of concern that the Tribunal had about the Applicant’s evidence were put to the Applicant at the hearing, and the Applicant’s responses were noted. 

4. To the extent that Ground 1 of the initiating application asserts a denial of procedural fairness, the Tribunal’s decision record makes clear that the applicants were given an opportunity to be heard in respect of their claims. There is nothing on the face of the Tribunal’s decision record to suggest that any of Tribunal’s conclusions were not obviously open to it on the known material. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

5. Accordingly, Ground 1 of the initiating application is not made out. 

Ground 2 of the Initiating Application

1. Ground 2 of the initiating application asserts that the Tribunal’s decision was unjust. Ground 2 also asserts that the Tribunal did not consider that the Applicant had been under immense and intimidating pressure from Mr C. 

2. In support of Ground 2 of the initiating application, the Applicant said that the Tribunal made the wrong decision, and that it is true that he feared harm from Mr C.

3. I understood the Applicant’s broad assertion that the Tribunal’s decision was unjust as being a complaint that the Tribunal did not consider that the Applicant had been under immense and intimidating pressure from Mr C. Exhibit 1R, which includes the Applicant’s written statement in support of his protection visa application, does not suggest that the Applicant at any time made a complaint that he was under immense and intimidating pressure from Mr C in those terms. However, to the extent that the Applicant clearly claimed that he feared harm from Mr C, those claims, as stated above, were explored with the Applicant in some detail by the Tribunal. 

4. As stated above, ultimately, the Applicant’s claims in relation to Mr C were comprehensively rejected by the Tribunal. The Tribunal’s findings in relation to Mr C were open to it on the evidence and material before it, and for the reasons it gave. 

5. Accordingly, Ground 2 of the initiating application is not made out. 

Ground 3 of the Initiating Application

1. Ground 3 of the initiating application again asserts that the Tribunal failed to accord procedural fairness to the Applicant because it gave little weight to the Applicant’s claims, and because it found inconsistencies in the Applicant’s evidence.

2. In support, the Applicant said that he was not an educated or powerful person, and he could not explain everything to the Tribunal. 

3. The weight afforded to the evidence before the Tribunal was a matter for the Tribunal, as were the findings the Tribunal made in relation to the existence of various inconsistencies in the Applicant’s evidence. As stated above, those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave. 

4. The fact that the Tribunal found inconsistencies in the Applicant’s evidence, and made adverse credibility findings in respect of the Applicant’s claims, does not constitute a denial of procedural fairness to the Applicant.

5. Accordingly, Ground 3 of the initiating application is not made out.

Ground 4 of the Initiating Application

1. Ground 4 of the initiating application asserts that the Tribunal erred by failing to assess the Applicant’s claim in the manner required under s.414 of the Act.

2. Again, that claim was not supported by particulars, either written or oral. In support of Ground 4, the Applicant said no more than that it is true. 

3. Ground 4 otherwise makes a bare assertion that does not disclose an error capable of review by this Court. Section 414 of the Act is a mechanical section requiring the Tribunal to conduct its review.

4. Accordingly, Ground 4 of the initiating application is not made out.

5. Further, in relation to all the claims made by the Applicant, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see 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 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 –170 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

6. The Applicant’s complaints otherwise appear more to be in the nature of a disagreement with the findings and conclusions of the Tribunal.  Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; 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] per 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.”

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’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.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  15 June 2016