SZUUM v Minister for Immigration

[2015] FCCA 3549

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3549

Catchwords:

MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – allegation of bias – whether Tribunal decision was unreasonable – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, Part 44

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
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
SZHVL v Minister for Immigration [2008] FCA 356
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

First Applicant: SZUUM

Second Applicant: SZUUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2053 of 2014

Judgment of: Judge Nicholls

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Sydney

Delivered on: 7 December 2015

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Solicitors for the Respondents: Ms R Krishnan of Australian Government Solicitor

ORDERS

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

2. The application made on 22 July 2014 and amended on 19 December 2014 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $3,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2053 of 2014

SZUUM

First Applicant

SZUUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 July 2014 and amended on 19 December 2014 seeking review of the decision of the Refugee Review Tribunal, now the “Administrative Appeals Tribunal” (“the Tribunal”), on 23 June 2014, which affirmed the decision of the Minister’s delegate to refuse Protection (Class XA) visas to the applicants (“the visa”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicants are citizens of Nepal and are wife (“the applicant”) and husband (“the second applicant”). The applicant arrived in Australia on 17 May 2012 on a dependent Temporary Skilled (VC 485) Graduate (Subsequent Entrant) visa (CB 85). The second applicant arrived in Australia in 2006, and later returned to Nepal where he married the applicant. The second applicant returned to Australia on Temporary Skilled (VC 485) Graduate visa. The second applicant applied for a student visa on 8 November 2012, with the applicant as his dependent, however, this was refused on 18 December 2012 (CB 85).

3. The applicant applied for a protection visa on 29 April 2013 (CB 1 to CB 33). The second applicant applied as a member of the applicant’s family unit and made no claims to protection in his own right (CB 22 to CB 33). The applicant provided a number of supporting documents with her application (CB 34 to CB 63). She provided a written statement in support of her application on 25 September 2013 (CB 66 to CB 71).

4. The delegate refused the grant of protection visas to the applicants on 20 December 2013 (CB 72 to CB 96). Essentially, the delegate was not satisfied as to the applicant’s credibility and found that she had “exaggerated her profile and influence” in Nepal and she was, at best, of “marginal interest” to any political group (CB 88 to CB 95).

The Tribunal

1. The applicants applied to the Tribunal for review of the delegate’s decision on 20 January 2014 (CB 97 to CB 102). The applicants attended a hearing before the Tribunal on 27 May 2014 (CB 109 to CB 111). The applicant provided a copy of their marriage registration certificate, and a translated copy of the certificate to the Tribunal at the hearing (CB 112 to CB 113).

2. Before the Tribunal, the applicant drew on what she had previously put to the delegate both orally and in writing. She claimed to fear harm on return to Nepal because she was a member of the Nepali Congress Party and had distributed pamphlets for the party in her home area of Pokhara (CB 66, [25] at CB 122 and [28] at CB 123).  She claimed to have been harassed, threatened, abducted and repeatedly raped by members of the Maoist Party because of her refusal to join them and in retaliation for her criticism of the Maoists (CB 67 and [28] at CB 123). 

3. She claimed that they continued this harassment until she married and moved to Kathmandu, where she lived with her husband and his parents.  She also claimed that the police ignored her complaints and, therefore, she could not look to the authorities in Nepal for assistance (CB 67).  She claimed to fear harm on return to Nepal from the Youth League of the Maoist, and Maoists generally. This was because of her past and continued involvement in Australia with the Nepali Congress Party.  Further, she claimed that as a rape victim she would suffer humiliation and neglect in Nepal. Further, that as a woman, she would be discriminated against in Nepal (CB 68 and [29] at CB 123). 

4. The Tribunal affirmed the delegate’s decision to refuse the grant of protection visas to the applicants (CB 118 to CB 133). The Tribunal accepted some factual claims made by the applicant. It accepted that the applicant lived in Pokhara until her marriage, that she attended school from 2002 to 2011, and then went to live in Kathmandu, that she had not worked in Nepal and that she had been married in October 2011 and lived with her husband’s family. 

5. However, the Tribunal rejected the entire factual basis on which the applicant based her claim to fear harm on return to Nepal.  The Tribunal said it had significant concerns with the applicant’s credibility regarding the core factual matters giving rise to her claims for protection ([30] at CB 123).  These concerns arose out of various findings regarding her evidence, which the Tribunal found to be confusing, internally inconsistent and unpersuasive.  The Tribunal found that the applicant was unable to satisfactorily explain inconsistencies in her evidence when these matters were put to her ([31] at CB 123 to [42] at CB 127).  Ultimately, the Tribunal found that the applicant’s claims were a fabrication ([43] at CB 127).  Given this finding, the Tribunal then rejected the entire factual basis of the applicant’s claim to fear harm. It found that she did not satisfy either of the criteria for the grant of the protection visa ([47] at CB 128 to [51] at CB 129). The second applicant’s application was consequently unsuccessful, as it was entirely reliant on the applicant’s claims ([52] at CB 129). 

Application before the Court

1. The application, as amended, is in the following terms:

   “1. I am a true victim of the arbitrary view and impulsive decision reached by the Refugee Review Tribunal Member and the Tribunal Member has committed a jurisdictional error by taking into account irrelevant assessment and material in my case. I argue that the Tribunal member’s inference on my evidence as to my involvement with the Nepali Congress and my activity for the Nepali Congress Party had been wholly unfair to me in circumstances where I was unable to answer calmly because in the stress of the moment I had not been able to fully to communicate appropriate answers to the questions I was asked at the department interview

   2. The Tribunal Member’s assumption has overlooked my genuine involvement and activity for the Nepali Congress. Hence my deprivation by the Tribunal member of that assumption is a breach of natural justice and fairness going to jurisdiction. The Tribunal Member has applied its arbitrary view on the issue of my activity and involvement with the Nepali Congress Party rather than the facts.

   3. It is unfair that the Tribunal Member simply ignored my reasons and explanations and held severe doubt on my claims instead as to why I was not able to answer appropriately at the Department interview. The Tribunal member formed that an initial disbelief of my credibility and failed to look at my whole evidence and consider them appropriately. I argue that credibility should not be an issue.

   4. It is contended that the Tribunal Member simply considered that I had fabricated claims to achieve an immigration outcome other than considering my claims with fairness. I contend the Tribunal Member fell into jurisdictional error by too readily concluding that I was not a rape victim impugning my credibility.

   5. I was denied procedural fairness based on the Tribunal’s findings that I lacked credibility and the Tribunal Member had made up its mind during the hearing that I was not a refugee.”

Before the Court

1. The parties attended at a first Court date in this matter on 17 September 2014 and a number of orders were made on that date for the progress of the case. Included in those orders was the opportunity to file any further amended application, and any evidence by way of affidavit. An order was also made that a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) be dispensed with. The matter was set down for further mention at a callover before a Registrar of this Court. However, at that callover, on 11 March 2015, a Registrar set the matter down for a show cause hearing, that is, a hearing pursuant to Part 44 of the FCC Rules. The applicants appeared in person before the Court today. They were assisted by an interpreter in the Nepali language.

2. The reason for that order (setting the matter down for a “show cause” hearing) by the Registrar is not clear.  After adjourning to allow Ms R Krishnan, who appeared for the Minister, to obtain instructions, she was unable to assist with any further explanation as to what may have occurred. In any event, she submitted that, given the circumstances, the Minister’s position was that the matter should proceed as a final hearing. 

3. I considered whether this matter may have been of some disadvantage to the applicants. That is, that the confusion may have led them to appear today in the expectation that the matter was an interlocutory matter, rather than a final hearing. However, I am satisfied on what the applicant said from the bar table that the distinction between a show cause hearing and a final hearing was not understood by the applicants. In any event, on the applicant’s submissions before the Court, the applicants had come to this hearing today in the expectation of putting to the Court and arguing that the Tribunal made a “legal mistake”.  I was satisfied, therefore, that no disadvantage would fall to the applicants in the matter proceeding as a final hearing, given that, in effect, that is what the applicants had come prepared to address.  The applicant made oral submissions to the Court today. The second applicant relied on her submissions.

Consideration

1. The application to the Court, as amended, and as the Minister, in my view, correctly submitted, is in narrative form.  The amended application, rather than asserting any jurisdictional error on the part of the Tribunal, consists of a series of statements taking issue with the various findings and ultimate conclusion made by the Tribunal.  While ground two makes reference to a “breach of natural justice and fairness”, it is clear, in context, that this is put as a complaint that the Tribunal did not believe her claims to fear harm on return to Nepal.

2. As I sought to explain to the applicants during the course of the hearing today, this Court has no power to intervene and substitute its own findings of fact for those of the Tribunal. The applicants made a number of complaints by way of their amended application and I will deal with each of these now. 

3. First, the applicants assert that the Tribunal took an arbitrary view of the applicant’s claims, and made an “impulsive” decision.  It must be said that these assertions are not supported on any plain, let alone a fair, reading of the Tribunal’s decision record.  As the Minister submits, the decision record reveals a careful, considered and comprehensive analysis of the applicant’s claims and evidence. 

4. The Tribunal’s findings, including the various findings that informed its central conclusion, and its view of the applicant’s credibility, were all reasonably open to it on what was before it (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332) (“Li”). The Tribunal’s analysis in this regard cannot be properly described as “arbitrary” or “impulsive”.  The Tribunal gave an explanation, and justification, for its adverse conclusion as to the applicant’s credibility.  Its findings of fact in this regard were all within jurisdiction. 

5. Second, and linked to this complaint, is a separate allegation that the Tribunal did not, in effect, bring an open mind to the proceedings.  This may be some attempt to assert bias on the part of the Tribunal member or even the apprehension of bias.  Such an allegation is a very serious matter to raise against an administrative decision-maker. That is because, unlike other assertions of legal error, an allegation of bias seeks to attack the very integrity of the decision-maker.  For this reason, the law requires that such allegations must be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) at [69] and [127]).

6. The applicant’s amended application, when seen in light of oral submissions today, cannot be said to satisfy this basic requirement.  Further, it is the case, that it is a rare or exceptional case, where bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] and SZHVL v Minister for Immigration [2008] FCA 356 at [17]).

7. The tests for bias, and the apprehension of bias, are now well-settled (Jia Legeng, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

8. Despite the opportunity that has been provided to the applicants by orders made by the Court, they have not provided any evidence to the Court to support this complaint.  In all, I cannot see that the Tribunal’s decision record can give rise to even an inference that the Tribunal did not bring an open mind to the proceedings. 

9. When read fairly and properly, the applicant’s complaint to the Court can only be said to arise from the fact that the Tribunal made adverse findings about the applicant’s credibility.  This, in the absence of anything else, is not sufficient to say that an allegation of bias has been properly made. In any event, bias is not apparent on the face of the decision record.

10. Third, the applicants also complain that the Tribunal drew an unfair inference from the applicant’s evidence concerning her involvement with the Nepali Congress Party. That unfairness was said to arise from the questions asked by the Tribunal, and the Tribunal’s expectation that she have a detailed knowledge of the Nepali Congress Party. 

11. In her oral submissions before the Court today the applicant emphasised that she should not be expected to know “everything” about the Nepali Congress Party.  She claimed that she was an “ordinary” Nepali Congress Party member and as such could not be expected to know “everything” that there was to know about that party. The complaint was that the Tribunal should not have had the expectation that she would know more about the Nepali Congress Party than she did.

12. In relation to whatever questioning may have occurred at the hearing, the applicants, again despite the opportunity provided, have not provided a transcript of the Tribunal hearing to the Court.  The only evidence that is before the Court, relevant to this complaint, is what is contained in the Tribunal’s decision record. 

13. The Tribunal was entitled, in the circumstances presented to it, to question the applicant about her claimed involvement with the Nepali Congress Party, and her knowledge of it.  The applicant claimed to be a member of that party and to be active in her support of it.  I cannot see that the Tribunal imposed any arbitrary, or specific, standard of knowledge that the applicant was required to demonstrate before her claims would be believed. 

14. Any plain reading of the Tribunal’s decision record reveals that the Tribunal did not have any expectation that the applicant know “everything” about the Nepali Congress Party that could be known. Rather, the Tribunal asked questions of her and formulated its findings based on her answers, in light of what would be expected to be the knowledge of a person who claimed to have had the level, and time, of involvement with the Nepali Congress Party as the applicant did. 

15. In his submissions, the Minister referred the Court to the Full Court authority in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (“MZZJO”) at [47]:

    “The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge: see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]- [32]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [37] per Kenny J; SZOCT 189 FCR 577; [2010] FCAFC 159 at [41], [50] per Buchanan J; SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451 at [34]- [36] per Bromberg J.”

1. In my view, on the evidence that is before the Court, the Tribunal in the current case proceeded consistently with what the Court set out in MZZJO as the proper approach to matters of this type. 

2. On the evidence, the Tribunal’s questioning was, in part, directed to the applicant’s own claimed conduct. For example, when she first became involved with the Nepali Congress Party. It is not unfair, in any sense, for the Tribunal to ask a question of someone who claims to have belonged to a political party as to when they first joined that party.  The applicant gave inconsistent evidence, in this regard, during the course of the processing of her initial application and before the Tribunal. The Tribunal found that she was unable to provide a satisfactory explanation for this. 

3. It is not arbitrary or capricious of the Tribunal to rely on inconsistencies in the applicant’s own evidence about when she joined the political party, which she said formed the basis for the adverse attacks on her by the Maoists. 

4. Nor, in my view, was it unreasonable, or even irrelevant, of the Tribunal to ask questions, such as the name of the current president, or Prime Minister, of Nepal or the name of her local MP. This is particularly so given the applicant’s claimed level of involvement as an ordinary member of the Nepali Congress Party.

5. On what is before the Court, the Tribunal’s questioning presents as having a logical and rational connection to the claims, and the material before it, and arose out of that material. This complaint also does not succeed.

6. Fourth, the amended application complains that the Tribunal did not accept the applicant’s explanation as to why she was not able to properly answer questions at the departmental interview with the delegate.  I note that the applicant did provide the explanation to the Tribunal that she was nervous at the interview with the delegate and, therefore, forgot certain matters, or could not otherwise provide satisfactory answers. 

7. On the Tribunal’s decision record it is clear that the Tribunal considered this explanation, but was not persuaded by it.  For example, at [34] (at CB 124 to CB 125), the Tribunal notes that nervousness at the departmental interview would not satisfactorily explain the applicant’s inability to recall generally known facts (these are set out at [37] and [38] at CB 125 to CB 126, where a similar example is found). 

8. At [37] (at CB 125) and [38] (at CB 126) of the Tribunal’s decision record, it is clear that the applicant claimed to have handed out pamphlets on behalf of the Nepali Congress Party, yet gave inconsistent evidence at the interview with the delegate and at the hearing with the Tribunal, as to what was written on the pamphlets and where she had handed them out. 

9. The Tribunal did not ignore the applicant’s explanation for the inconsistency in her evidence.  It was simply not satisfied that the explanation was satisfactory, given the applicant’s claimed political involvement.  No legal error is revealed in this regard.

10. Fifth, the applicant claims that the Tribunal ignored her evidence.  In the circumstances, this is not sustained.  Having regard to the Tribunal’s decision record, this is simply an allegation that the Tribunal did not accept the truthfulness of her evidence and her claims.  There is nothing in the material before the Court to say that the Tribunal failed to consider the claims. That is, claims expressly made, and clearly arising, on the evidence presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

11. A failure to accept the truthfulness of what an applicant says is not a failure to consider the claims made. Here, the applicants seek impermissible merits review and, therefore, no legal error is revealed (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). 

12. Sixth, the applicants also complain that the Tribunal rejected the applicant’s claim to be a victim of rape.  Here, again, in the circumstances, the applicants seek impermissible merits review (Wu Shan Liang). The Tribunal rejected the applicant’s claim in this regard because it found she provided “confusing, vague and inconsistent evidence” ([40] at CB 126).  It is the case that the Tribunal is not required to uncritically accept anything, or everything, that an applicant says to it (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The Tribunal gave reasons for its relevant findings and these were probative of the material before it. Again, no legal error is revealed.

13. As stated above, before the Court today the applicant made a number of submissions.  First, that she did not agree with the Tribunal decision because everything that she had said was the truth.  That, on its own, is not an assertion of legal error on the part of the Tribunal, in circumstances where the Tribunal’s relevant findings were reasonably open to it on what was before it (Li). 

14. Of relevance is what McHugh J stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]:

    “In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were ‘utterly implausible’. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

    [Emphasis added.]

15. The applicant also claimed that the Tribunal made no attempt to find out the truth.  To the extent that this may be some allegation of bias, what is set out above stands in answer to that.  If this is some attempt to argue that the Tribunal should have conducted some further investigation, then, it is the case that there is no obligation on the Tribunal to investigate, or to conduct further inquiries, into the applicant’s circumstances. Nor do the circumstances, which may give rise to such an obligation, as explained by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25], exist in this case.

16. The applicant also submitted to the Court that she was denied “basic rights” before the Tribunal.  It is unclear as to whether, in addition to that being an expression of disagreement with the Tribunal’s findings, this was some attempt to argue procedural unfairness on the part of the Tribunal. 

17. If so, then there is nothing before the Court to show any failure of procedural fairness on the part of the Tribunal. The applicants were invited to a hearing before the Tribunal pursuant to s.425 of the Act. On the evidence before the Court the issues dispositive of the review were squarely raised with the applicants at the hearing.

18. The applicant could have been in no doubt following the delegate’s decision, and certainly during the course of the hearing of the Tribunal, that the credibility of her entire factual account was at issue.  The evidence before the Court also shows that the applicant was given the opportunity to explain, and to address, the Tribunal’s concerns.  The fact that she remains aggrieved with the view taken by the Tribunal is simply a request for this Court to indulge in impermissible merits review (Wu Shan Liang). 

19. During the course of submissions, the Minister noted [46] of the Tribunal’s decision record (at CB 128), where the Tribunal considered a Nepali Congress membership card that the applicant had submitted in corroboration of her claims.  The Tribunal found that it placed no weight on this document, given the prevalence of document fraud in Nepal, but also because of what it had found, otherwise, to be the lack of credibility of the applicant’s evidence. Again, the assignment of weight to be given to evidence before it is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ). The Tribunal gave reasons for its assignation of weight to this document. No legal error is revealed.

20. In all, I cannot see that the amended application gives rise to any revelation of jurisdictional error on the part of the Tribunal.  Nor, it must be said, is any jurisdictional error apparent on any plain reading of the Tribunal’s decision record, in light of the material that is in evidence before the court. 

Conclusion

1. In all, there is no jurisdictional error in the Tribunal’s decision.  It is appropriate that the application to the Court, as amended, be dismissed. I will make that order. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 22 January 2016