SZVIF v Minister for Immigration

[2016] FCCA 532

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 532

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65, 91R(3)

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

Applicant: SZVIF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2927 of 2014

Judgment of: Judge Barnes

Hearing date: 7 March 2016

Delivered at: Sydney

Delivered on: 7 March 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2927 of 2014

SZVIF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 30 September 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of China, arrived in Australia in May 2013 as the holder of a visitor visa.  She lodged an application for a protection visa in August 2013.  In a statement accompanying the protection visa application she claimed that she was persecuted by the Chinese Government due to her involvement in Falun Gong activities.  She claimed that she had travelled to the United States in mid-February 2013 and while there “got to know” Falun Gong.  She claimed that she saw people promoting Falun Gong in New York and spoke with a Falun Gong practitioner who gave her a brochure.  She claimed that this person introduced her to Falun Gong and convinced her to take “many discs” containing Falun Gong materials back to China.  She claimed that the Chinese government regarded such materials as illegal. 

3. The Applicant claimed that in China in mid-March 2013 she was watching a Falun Gong DVD, heard a knock on the door, opened the door and found a man from the water company to read her water meter.  She claimed that after he came into the room she turned the television off, but that 20 minutes after the meter reader left, the police arrived, searched her home, discovered Falun Gong material and took her to the police station for investigation, interrogated and mistreated her.  She claimed she told the truth, was held for 24 hours and released on the basis that she paid a fine and signed a statement that she would keep away from the Falun Gong organisation.  She claimed that thereafter she had to visit the police station once a week.  She fled to Australia.

4. As discussed further below, the Applicant submitted a number of supporting documents, including photographs of Falun Gong activities in Australia, supporting statements from individuals and a copy of a document said to be an invoice for the fine imposed on her by the Public Security Bureau in her city in China. 

5. The delegate refused the application.  In essence, the delegate did not accept that the Applicant had been truthful with respect to her claims and was of the view that her interest in Falun Gong was not genuine.

6. The Applicant sought review by the Tribunal.  She attended a Tribunal hearing.  The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.  The Applicant provided the Tribunal with further supporting documents, including a letter in the nature of submissions and further photographs of her engaged in Falun Gong activities in Australia. 

7. In its reasons for decision the Tribunal indicated that the key issue was the credibility of the Applicant.  The Tribunal referred to country information in relation to Falun Gong and the treatment of Falun Gong practitioners in China.  It set out the Applicant’s claims.  It listed all of the documents provided by the Applicant to the delegate and to the Tribunal. 

8. Under the heading “Credibility and findings” the Tribunal explained that it had significant concerns with the Applicant’s evidence as to how she became aware of and interested in Falun Gong and her decision to become a practitioner, with her account of the interest of the authorities in China in her practice and in relation to the timing of her public practise of Falun Gong in Australia. 

9. First, the Tribunal considered the Applicant’s account of her conversation to Falun Gong in the United States, which it saw as unlikely.  It referred to its earlier description of her claims that while visiting Chinatown in New York she saw people promoting Falun Gong, was given a brochure and (despite her initial repulsion) was won over by the person she spoke to, told to quit any links she might have with the Communist Party or associated groups and moved at hearing of the plight of Falun Gong practitioners and repression by the authorities in China.  She had claimed that they asked her to join their activities, that she said that as she was on a tourist visa she could not join a demonstration, but that she was given many discs that contained Falun Gong materials and took them back to China.

10. In its findings and reasons the Tribunal referred to the Applicant’s claim that she was initially repulsed when she saw the Falun Gong practitioners and to her claim that she was “won over” to the Falun Gong cause in a one to two hour encounter with a practitioner.  It recorded that at the hearing the Applicant said that at the end of that conversation she was given various materials which included a disc and a small Falun Gong book, as well as the key Falun Gong text, Zalun Falun, and that her decision to become a Falun Gong practitioner was made at that point.  She also told the Tribunal that she did not look at or read any of the materials until she returned to China.

11. The Tribunal found that it seemed “inherently unlikely” that such an important and potentially life changing decision to follow a practice outlawed in one’s home country would be made on the basis of a one to two hour conversation, without time for reflection, further discussion with other practitioners or reading, viewing and digesting relevant materials.  It recorded the Applicant’s explanation that she realised during this meeting she had been brainwashed in China and was getting to know the real China.  It had regard to the fact that at the hearing the Applicant acknowledged that while in America she was fully aware of the adverse view of the Chinese authorities to Falun Gong.  The Tribunal found that it was implicit that the Applicant would have been aware of the dangers of bringing Falun Gong literature and audio/visual materials into China.  It considered it implausible in these circumstances that the Applicant would have taken such a risk based on her relatively limited interaction with Falun Gong and without time to digest the materials she had been given.

12. The Tribunal also had regard to inconsistencies in the Applicant’s evidence about precisely what material she was given by the Falun Gong practitioner.  In particular, in her written claim she said she was given “many discs” and made no reference to books.  The Applicant told the Tribunal that this statement had been prepared based on a document she had written in Mandarin which had been translated into English.  The Tribunal put to her that there was a difference between many discs and one disc only (as she said at the hearing).  It considered her claim that she had meant to say “many materials” and had regard to the fact that in the interview with the delegate the Applicant initially referred to being given a booklet and a disc, but later said she was given a book, Zhaun Falun, as opposed to a booklet.  The Tribunal found that these discrepancies confirmed its doubt about the account of the Applicant’s conversion to Falun Gong, although it gave only limited weight to this issue given the potential difficulties of language and translation. 

13. These factors led the Tribunal not to accept that the Applicant had a conversion to Falun Gong during her time in the United States or that she brought back Falun Gong materials from the United States to China.

14. In that context the Tribunal found that the statement of a named person said to confirm the Applicant’s encounter with Falun Gong in New York (who had indicated that he had gone to America, met the Applicant, that their work was related to clothing and that he was with her when she saw the Falun Gong promotion and received a book about Falun Gong and was given many discs) did not genuinely reflect actual events. 

15. The Tribunal then turned to the Applicant’s account of how she came to the attention of the authorities in China which it found also lacked credibility.

16. In circumstances where the Applicant was fully aware of the attitude of Chinese authorities to Falun Gong the Tribunal found that it was not credible that she would have opened the door to someone she did not know while she had a Falun Gong DVD running.  The Tribunal had regard to the fact that the Applicant had confirmed that she had not disclosed to anyone else her Falun Gong practice and found therefore that there was no one potentially at the door who would have been knowledgeable of the practice and thus not a threat to the Applicant.

17. The Tribunal did not accept that the Applicant was discovered in her home watching a DVD containing Falun Gong material and reported to the police.  Therefore it did not accept her claims about detention, interrogation and fining by the police.  In this context, the Tribunal considered the document it described as a receipt from the PSB (which, it is apparent, is a reference to a document headed “invoice”).  The Applicant claimed that it was genuine and that the seal from the PSB demonstrated this.  The Tribunal did not consider the police receipt was genuine.  It referred to country information indicating fraudulent documents were frequently used and readily available in China.  It also found that the statement the Applicant had provided from a person said to have assisted her with payment of the fine did not genuinely reflect actual events. 

18. In relation to claimed events in China the Tribunal also had regard to the fact that the Applicant was able to leave China without problem, notwithstanding that she claimed she was required to report to the police weekly.  The Tribunal acknowledged that it was possible that the authorities made a mistake in letting her leave as she claimed, but found that this was one more factor, albeit of limited weight, which caused it not to accept that the Applicant was of interest to the authorities.  The Tribunal did not accept that the Applicant was on a list of Falun Gong practitioners kept by the authorities. 

19. The Tribunal also found that the timing of the commencement of the Applicant’s public participation in Falun Gong activities in Australia led to further doubts as to whether she was a genuine practitioner prior to that time.  It recorded that the Applicant stated that she started to practise Falun Gong at the Campsie site in August 2013 (which was three months after she arrived in Australia).  The Tribunal referred to her explanation for the delay (that her lack of English and unfamiliarity with the environment caused her to stay at home until she got used to things).  It did not accept this explanation, being of the view that if the Applicant was fleeing China because of her treatment by authorities as a result of her practice of Falun Gong (to which she said she was committed), the logical step immediately on arriving in Australia would be to connect with one of the many Falun Gong practice centres.  It also found that given the Applicant’s claim that she had no relatives or friends in Australia, her obvious means of connection and integration into Australian society would have been to engage with a Falun Gong group.  The Tribunal drew an adverse inference from the significant delay in the Applicant publically engaging in Falun Gong activities.  It also noted that this occurred in the same month as the Applicant lodged her application for protection.  It did not believe her explanation that the timing was coincidental.  The Tribunal concluded that the Applicant commenced her Falun Gong activities as a means to support her application for protection when she made a decision to apply around August 2013.

20. The Tribunal did accept that in her interview with the delegate the Applicant had displayed a basic knowledge of the principles and practises of Falun Gong.  It accepted that since August 2013 she had engaged in Falun Gong activities, including weekly participation at the Campsie practice site, as confirmed by a statement from the person in charge of practising Falun Gong in Campsie, but did not accept that that person could know that the Applicant was practising as a genuine believer.  The Tribunal also accepted that the Applicant had participated in a Falun Gong conference and had registered for another and that she regularly handed out Falun Gong brochures at various locations.  It accepted that the photographs she provided of her Falun Gong activities were genuine. 

21. However, the Tribunal returned to the point that key to its enquiry was when the Applicant started to practise Falun Gong and the genuineness of her belief, as those issues went to her motivation in becoming a public practitioner of Falun Gong in August 2013.

22. The Tribunal concluded that the three areas of concern cumulatively considered and the various questions it had outlined concerning the Applicant’s evidence caused it to find that the Applicant was not a witness of truth.  It reiterated that her accounts of both her conversion in the United States and the detection by police of her activities in China were inherently unlikely and that her delay in participating publicly in Australia in Falun Gong activities served to confirm that she was not a practitioner prior to August 2013.  The Tribunal found that the Applicant was not converted as a Falun Gong practitioner in the United States in early 2013, that she did not take Falun Gong materials back to China, that she was not discovered watching Falun Gong materials and detained and interrogated, and that she was not of interest to the Chinese authorities as a result of any Falun Gong activities.

23. It went on to find that these findings, and the fact that the Applicant became a public Falun Gong practitioner three months after her arrival in Australia and coinciding with her protection visa application, caused it to find that she joined Falun Gong in Australia for the sole purpose of furthering her claim for protection, that the timing was not coincidental and that she did not hold a genuine belief and motivation in the practice of Falun Gong. It found that her sole motivation in publicly joining Falun Gong in Australia, practising Falun Gong, handing out brochures and attending conferences and marches had been for the purpose of strengthening her claim to be a refugee. Hence the Tribunal disregarded the Applicant’s Falun Gong activities in Australia for the purposes of the Refugees Convention criterion under s.91R(3) of the Migration Act 1958 (Cth) (“the Act”).

24. The Tribunal concluded that as the Applicant had not engaged in Falun Gong activities in China, was no interest to the authorities and as her conduct in Australia was to be disregarded, she did not have a well-founded fear of persecution in the reasonably foreseeable future in China based on her Falun Gong activities or beliefs.

25. The Tribunal then turned to the complementary protection criterion. It acknowledged that s.91R(3) of the Act did not apply in that context. The Tribunal’s consideration of complementary protection is quite detailed. It concluded that as it had found that the Applicant had not engaged in Falun Gong activities in China and was of no interest to the authorities, there was no real risk she would suffer future significant harm based on her past profile in China. The Tribunal acknowledged that in the hearing the Applicant claimed that she would practise Falun Gong secretly in China, but given its finding as to her motivation in joining Falun Gong in Australia and about the lack of genuineness of her belief, the Tribunal did not accept that the Applicant would engage in the practice of Falun Gong in China in private or otherwise and, hence, concluded that there was no real risk of future significant harm to her due to any future practise of Falun Gong in China.

26. The Tribunal acknowledged, however, that the Applicant had engaged in Falun Gong activity in Australia and considered whether she faced any harm on return as a result of the Chinese authorities being aware of such activities.  It observed that the Applicant had said that she did not know whether she believed her activities in Australia were known to the Chinese authorities, but had regard to country information indicating that the Chinese authorities in Australia had a network for identifying dissident activists and that while prominent Falun Gong practitioners may be detained on return to China, those who practised privately and did not make beliefs known were less likely to face repercussions.

27. The Tribunal noted there was no suggestion that the Applicant was a leader in Falun Gong or more than an ordinary participant.  However it also found that the Chinese information network was such that there was a small possibility that the Chinese authorities in Sydney may know of her involvement in Falun Gong, so that there was a possibility of adverse attention on return to China.  It found that the independent information suggested however that the key aim of the Chinese authorities was to ensure that dissidents, including Falun Gong practitioners, did not continue to promote and advocate their views in China.  It also referred to information suggesting that known protection visa applicants were “likely” to be interviewed on return and may be subjected to official scrutiny (including surveillance and detention) for a short period, although seeking asylum was no longer seen as a disloyal act.  The Tribunal acknowledged that there was advice indicating that persons who publicly criticised the government in China may face more severe treatment than other returned failed asylum seekers.  Based on this information, the Tribunal accepted that it was possible that the Applicant could be questioned by the authorities on return.  However, as it had found that she was not a genuine Falun Gong practitioner, it concluded that she would indicate to the authorities that she was not a genuine practitioner and that she had no intention to practise or advocate Falun Gong in China or to criticise the government.  The Tribunal was of the view that this would satisfy the authorities who would accept her motivation was for the purposes of her protection claim for economic reasons.  It therefore found that the harm the Applicant may suffer was being questioned, detained briefly and possibly having her activities monitored and having reporting requirements.  It did not consider there was a real risk of any greater harm as a result of the Applicant’s involvement in Falun Gong in Australia.

1. The Tribunal then considered whether the harm it accepted may occur fell within any of the categories of significant harm in s.36(2)(a) of the Act. In particular, it did not consider that being detained for a period and questioned and possibly monitored for a period met the threshold for cruel or inhuman treatment or punishment or for degrading treatment or punishment. In that context the Tribunal had regard to departmental guidelines indicating that detention did not itself constitute degrading treatment or punishment, although particularly harsh detention might. The Tribunal found, on the basis that the Applicant would disavow Falun Gong, that her treatment would not be unduly harsh and that she would not be subjected to extreme humiliation. It concluded that she would not face significant harm and found that she did not meet the complementary protection criterion.

2. The Tribunal affirmed the delegate’s decision. 

3. The Applicant sought review by application filed in this Court on 22 October 2014.  There are three grounds in the application.  However the third ground is a simply a request that the Court consider her situation.  As I endeavoured to explain to the Applicant, this Court does not have jurisdiction to reconsider her claim insofar as she seeks merits review.

4. In the first ground, the Applicant contended that, as a genuine Falun Gong practitioner, she could not return to China, that she feared persecution and, as she reiterated in oral submissions, claimed that no matter how she explained to the Tribunal, the Tribunal did not believe what she said and “even suspected the credibility of her personal statement”.  She claimed she felt disappointed and that the Tribunal’s judgment was very unfair.  She reiterated her claim about unfairness in oral submissions.

5. In particular, the Applicant took issue with the Tribunal’s reasoning in rejecting her claim about conversion to Falun Gong in the United States.  She suggested that the Tribunal’s judgment was a mistake, one-sided and limited and further elaborated on her claims about her knowledge of Falun Gong, what occurred in the United States and how it led her to convert on the basis of an “epiphany”. 

6. In the second ground the Applicant took issue with the fact that the Tribunal did not accept her explanation for the timing of her public participation in Falun Gong activities in Australia.  She provided an explanation for this timing, based on her circumstances and lack of English and an explanation as to how she came to practise Falun Gong in August 2013.

7. In relation to both of these grounds, insofar as the Applicant reiterates her protection claims, she seeks impermissible merits review.  Beyond this, I have considered the issues that she raises in relation to the Tribunal’s consideration of these and the other aspects of her claims.  Relevantly, insofar as the Applicant takes issue with the Tribunal consideration of her claims about what occurred in the United States, the Tribunal expressed such concerns in the context of considering the Applicant’s credibility.  As indicated, the Tribunal reached an adverse credibility finding based on three areas of concern and questions concerning the Applicant’s evidence.

8. The Tribunal gave reasons for its findings as to the inherent unlikelihood of the Applicant’s claims in relation to the nature of and circumstances surrounding her claimed conversion in the United States.  In that context it also found it implausible that, being aware of the dangers of bringing into China Falun Gong literature and audio-visual material, the Applicant would have taken such a risk based on relatively limited interaction with Falun Gong and without time to digest the material.

9. The Tribunal findings in that respect and its credibility findings generally were open to it on the material before it for the reasons that it gave.  Credibility findings are a matter for the Tribunal as the decision maker par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J).

10. It seemed to be implicit in the Applicant’s grounds and submissions that she was contending that it was necessary for the Tribunal to make a case against her.  Insofar as that was intended, it is well-established that it is for an Applicant to advance whatever evidence or argument he or she wishes to advance in support of his or her claims and for the Tribunal to decide whether the claim is made out (see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14). Moreover under s.65 of the Migration Act, the Tribunal is required to refuse the application if not affirmatively satisfied that the criteria for the visa in question have been satisfied (see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]). In particular, the Act does not require the visa to be granted in the absence of an adverse finding (ibid). 

11. Insofar as the Applicant’s claim in this and other respects is, in essence, a complaint about irrationality, illogicality or the unreasonableness of the Tribunal reasoning, the Applicant’s contentions and her disagreement with the Tribunal’s reasons do not establish that the Tribunal reasoning in this respect, or its ultimate finding, was a decision at which no rational or logical decision-maker could have arrived on the same evidence in the sense considered in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 or that the Tribunal’s reasoning was otherwise such that it could be categorised as irrational or illogical.

12. The Applicant’s disagreement with the Tribunal’s reasoning seeks merits review. Insofar as she complained that the decision was not a fair decision, as pointed out by the solicitor for the First Respondent, the Tribunal’s obligation is to provide the Applicant with a fair procedure. There is nothing in the material before the court to establish or suggest any failure by the Tribunal to provide procedural fairness in accordance with the requirements of the Act or any actual or apprehended bias.

13. It is apparent from the material before the court that the Applicant would have been on notice from the delegate’s decision of an issue in relation to the credibility of her claims.  The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons, from which it appears that the Tribunal raised with the Applicant dispositive issues in the course of the hearing.  Ground 1 and the broader contentions that the Applicant raises in terms of unfairness and unreasonableness are not made out. 

14. In relation to ground 2, the Tribunal gave reasons for its findings about the timing of the Applicant’s public engagement in Falun Gong activities in Australia, addressing not only the fact that this coincided with the protection visa application, but also the delay in engaging in such activities in circumstances where the Applicant claimed to be a committed Falun Gong practitioner fleeing China because of her treatment by the authorities.  Such findings were open to the Tribunal on the material before it for the reasons which it gave. 

15. I also note more generally that no jurisdictional error is apparent in the Tribunal’s approach to the application of s.91R(3) in relation to the Refugee’s Convention claim. It also clearly understood and applied the complementary protection criterion, bearing in mind that s.91R(3) did not apply in that context and considered the implications of the Applicant’s Falun Gong activities in Australia (as well as the fact of her protection visa application).

16. The explanation that the Applicant provides for the delay in commencing her Falun Gong public practise in Australia does not establish jurisdictional error on the part of the Tribunal, but seeks impermissible merits review.  Ground 2 is not made out. 

17. In oral submissions the Applicant also took issue with the Tribunal’s treatment of the supporting documents she provided.  Her main complaint appeared to relate to the fact that the Tribunal did not accept as genuine the document described as an “invoice” from the Public Security Bureau for the payment of a fine and the accompanying document in the name of a person who said that he knew her circumstances and paid the fine for her.  I have considered her contentions both in relation to these documents and also more generally.

18. As indicated, the Applicant provided a number of documents.  The Tribunal did not reject all of those documents.  For example, it accepted that the photographs she provided of Falun Gong activities in Australia were genuine.  It did not reject in its entirety the genuineness of the letter from the Campsie Falun Gong practitioner.  Rather, it accepted that the Applicant had engaged in Falun Gong activities in Australia since August 2013, as attested to by that person.  However it was open to the Tribunal not to accept that the person who provided this statement could know that the Applicant was practising as a genuine believer.

19. It is the case that the Tribunal did not consider the PSB invoice (or receipt) to be genuine.  However, it reached this view in circumstances where it had not accepted the underlying claim that the Applicant was watching Falun Gong material and that she was discovered and reported to the police and hence did not accept that she was detained, interrogated or fined.  In other words, the underlying facts were rejected comprehensively.  In addition, the Tribunal had regard to the frequent use and ready availability of fraudulent documents in China.  It did not, however, base its reasoning solely on the availability of fraudulent documents in China given that it had rejected the underlying claims.

20. It was open to the Tribunal to proceed in this manner.  It did not disregard potentially corroborative material (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [37]-[38]). Rather, it assessed it and considered its genuineness. The weight to be given to such evidence is a matter for the Tribunal. Insofar as this was material of some importance, I note that the Tribunal did reach a conclusion as to the genuineness of this document (see Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105).

21. The Tribunal also considered the other supporting documents provided by the Applicant, but found that they did not genuinely reflect actual events.  Again, such findings involved the Tribunal assessing and considering the weight to be given to these supporting corroborative documents.  Such an approach is not indicative of jurisdictional error.

22. The Applicant also contended that the Tribunal erred in making its own decision and failing to have regard to scientific evidence.  There is no suggestion that there was any scientific evidence put to the Tribunal or that the Tribunal was asked to make such an inquiry. 

23. Insofar as this may be seen as a contention that the Tribunal failed to make an obvious inquiry about a critical fact the existence of which was easily ascertained, these are not circumstances that would activate such an obligation in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39, bearing in mind that there is no general duty on the Tribunal to make an Applicant’s case or to inquire. It was not necessary for the Tribunal to base its rejection of the genuineness of the PSB “receipt” on the results of scientific investigations.

24. As set out above, the Tribunal’s approach to the state of satisfaction required under s.65 of the Act does not extend so far as the Applicant appeared to contend such as to require it to carry out scientific investigations of some kind or to make further inquiries before not being satisfied that the Applicant has met the criteria for the visa in question.

25. The grounds raised by the Applicant, both in writing and orally today, are not made out.  As jurisdictional error has not been established, the application must be dismissed.

26. The Applicant has been unsuccessful and the Minister seeks that she pay his legal costs.  The Applicant indicated that she did not have any money.  However her lack of funds is not of itself a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek such costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:15 March 2016