WZAVA v Minister for Immigration

[2015] FCCA 1454

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1454

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – Chinese citizen –whether breach of privacy by Department constitutes jurisdictional error – whether sur place refugee – whether denial of procedural fairness – whether irrelevant consideration taken into account – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Division 4, Part 7, ss.36(2)(a), (aa), (b) and (c), 48A, 422B, 425, 474, 476

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405; (2000) 173 ALR 23; (2000) 61 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZGIZv Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246
SZTLJ v Minister for Immigration & Anor [2015] FCCA 1253
SZTRU v Minister for Immigration & Border Protection [2015] FCA 170
SZVEY v Minister for Immigration & Border Protection [2015] FCA 394
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Applicant: WZAVA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 364 of 2014

Judgment of: Judge Antoni Lucev

Hearing dates: 18 & 25 May 2015

Date of Last Submission: 25 May 2015

Delivered at: Perth

Delivered on: 3 June 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr P Macliver

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 364 of 2014

WZAVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application

1. This proceeding commenced on 17 November 2014 by the applicant filing an application (“Judicial Review Application”) under s.476 the Migration Act1958 (Cth) (“Migration Act”) seeking review of a decision of the Refugee Review Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 24 October 2014 which affirmed a decision made by a delegate (“Second Delegate’s Decision” and “Second Delegate” respectively) of the first respondent (“Minister”) made on 21 August 2014 to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).

Background prior to the Tribunal hearing

1. The background of this matter prior to the Tribunal hearing is as follows:

   a)the applicant is a citizen of the People’s Republic of China who was born on 2 November 1941. The applicant arrived in Australia on 13 March 2009 on a visitor visa: Court Book (“CB”) 27-29 and 222;

   b)on 22 April 2009 the applicant made an application for a Protection Visa (“First Protection Visa Application”). The First Protection Visa Application was refused by a delegate of the Minister on 20 January 2010 (“First Delegate’s Decision” and “First Delegate” respectively): CB 207-259 and 316;

   c)the applicant was advised of the First Delegate’s Decision by letter dated 20 January 2010, which also advised him of his right to seek review by the Tribunal. The applicant did not seek review of the First Delegate’s Decision by the Tribunal, and upon his bridging visa ceasing on 1 March 2010 he became an unlawful non-citizen: CB 124 and 317-321;

   d)the applicant was taken into immigration detention on 14 January 2014. While in detention, the applicant submitted a second Protection Visa Application (“Second Protection Visa Application”) on 7 April 2014: CB 1-39 and 124;

   e)the applicant attended an interview with the Second Delegate on 25 June 2014. On 21 August 2014 the Second Delegate’s Decision was to refuse to grant the Second Protection Visa Application. The Second Delegate was not satisfied that Australia had protection obligations to the applicant under the Refugees Convention for the purposes of s.36(2)(a) of the Migration Act, and was also not satisfied that the applicant was a person to whom Australia had protection obligations under s.36(2)(aa) of the Migration Act: CB 126, 137, 140 and 141; and

   f)the applicant was advised of the Second Delegate’s Decision by letter dated 21 August 2014. The applicant lodged an application with the Tribunal seeking review of the Second Delegate’s Decision on 3 September 2014: CB 110-112 and 143-148.

Tribunal hearing and Tribunal Decision

1. By letter dated 25 September 2014 the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case. The hearing was arranged for 17 October 2014: CB 171-174.

2. The applicant attended the Tribunal hearing on 17 October 2014 to give evidence and present arguments with the assistance of an interpreter. Having regard to the provisions of s.48A of the Migration Act and the decision of the Full Court of the Federal Court in SZGIZv Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246 (“SZGIZ”) the Tribunal confined its review of the Second Delegate’s Decision to whether the applicant satisfied the complementary protection requirements of s.36(2)(aa), (b) and (c) of the Migration Act: CB 186 and 198-199 at [7]-[8].

3. On 24 October 2014 the Tribunal Decision affirmed the Second Delegate’s Decision not to grant the Second Protection Visa Application. The applicant was advised of the Tribunal Decision by letter dated 29 October 2014: CB 191-192 and 197. The Tribunal found that the applicant did not satisfy the criterion set out in s.36(2)(aa) of the Migration Act for the Protection Visa, and that the applicant was therefore unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Migration Act, and that he therefore did not satisfy the criterion for the Protection Visa, and could not be granted that Visa: CB 205 at [40].

Judicial Review Application

1. On 17 November 2014 the applicant made the Judicial Review Application to this Court seeking review of the Tribunal Decision.

2. On 4 February 2015 a Registrar of the Court ordered that the applicant file and serve on or before 3 April 2015 an amended Judicial Review Application giving particulars of the grounds of review and any further affidavits upon which he intended to rely at the hearing of the matter.

3. On 2 April 2015 the applicant filed and served an amended Judicial Review Application and an affidavit dated 26 March 2015 (“Applicant’s Affidavit”). There are four grounds in the amended Judicial Review Application, each of which is set out below in advance of its consideration by the Court.

4. When the matter was called on 18 May 2015 for hearing the applicant did not appear. The Court was informed that the service provider contracted to deliver persons from immigration detention to Court, namely Serco, had forgotten to pick the applicant up from the Yongah Hill Immigration Detention Centre near Northam and deliver him to the Court in Perth. Consequently, the hearing was adjourned to 25 May 2015, with the costs of 18 May 2015 reserved.

5. When the matter came on for hearing on 25 May 2015 the applicant sought to tender 23 pamphlets or documents relating to the practice of Falun Gong. The applicant confirmed that the materials in them were of a general nature. The Court rejected the tender of the documents. The Court notes that the documents were tendered before the Tribunal, and that the Tribunal observed that “anyone can acquire such promotional literature in support of their claims”: CB 202 at [25]. Given that the documents were tendered to the Tribunal, and given their nature, they were not relevant to the issues arising in respect of jurisdictional error in this case.

Consideration

Jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. In restricting itself to a consideration of the applicant’s complimentary protection claims the Tribunal did not err when regard is had to the provisions of s.48A of the Migration Act and the judgment of the Full Court of the Federal Court in SZGIZ. The applicant’s grounds of review do not complain, in any event, about the Tribunal confining its review of the Second Delegate’s Decision to the complimentary protection requirements in s.36(2)(aa), (b) and (c) of the Migration Act.

Ground 1 - Breach of privacy of applicant’s information by releasing applicant’s details on the Department’s website

1. Ground 1 of the amended Judicial Review Application is as follows:

   1. The first respondent breach my privacy of information by releasing my name and other details on the Department's website as per of the January 2014 detention Statistic for a period of nine days before 19 February 2014.

   Particulars

   It is a fundamental principle of the Refugee Law that a person seeking asylum like myself should be free to make mv protection claims free of disclosure and mv identity and other details to the authorities of my home country.

   To return me to mv home country would be in breach of the non-refoulement principle contained in Article 33 of the UN Refugee Convention and incorporated in section 36(2)(aa) of the Migration Act 1958, and the breach of my privacv of the information has rendered us a refugee “Sur Place” under the UN Refugee Convention and rendered the decision of the second respondent.

   (Transcribed from the amended Judicial Review Application without amendment).

2. In Minister for Immigration & Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405; (2000) 173 ALR 23; (2000) 61 ALD 1 at [27] per French J the Federal Court set out what constituted a refugee sur place, as follows:

   Turning back to the terms of the Convention, Art 1A is sufficiently widely expressed to allow for claims of refugee status which derive from events occurring while the claimant is outside the country of origin. Persons making claims based on such events, designated generally as “refugees sur place”, may seek protection based upon post-departure change of circumstances or dramatic intensification of existing conditions in the country of origin or because of the consequences of their own activities while abroad: J C Hathaway, The Law of Refugee Status (1991), pp 33-34. It is a particular application of that general proposition and of the ordinary meaning of Art 1A(2) that political opinion, wherever and however expressed may give rise to a well-founded fear of persecution in the country of nationality which will attract Convention protection. This is not a controversial proposition. It is well recognised in writings on the topic and in authority: A Grahl-Madsen, The Status of Refugees in International Law (1966), Vol 1, p 248; Hathaway, p 33; United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1992), par 96; Somaghi at 116.

3. The Tribunal accepted that as the applicant was in detention on 31 January 2014 the applicant’s name, date of birth, nationality, gender and detention details of the applicant may have been released inadvertently on the website of the Department of Immigration & Border Protection (“Department”): CB 203 at [31] (“Data Breach”)

4. The Tribunal specifically observed that:

   As noted in the delegate’s decision there was no information released regarding his [the applicant’s] protection claims, and the Tribunal accepts this.

   CB 203 at [31].

5. The Tribunal dealt with the Data Breach, observing that advice provided by the Department of Foreign Affairs and Trade between 2006 and 2009 and a report from a China expert in a German federal government body regarding the treatment of failed asylum seekers by the Chinese authorities upon their return to China indicated that differential treatment or persecution was unlikely, and that any action taken by the Chinese authorities would depend upon the circumstances of individual cases, unless the person:

   a)was a high-profile activist in Australia; or

   b)had been quoted publically as criticising China’s regime or senior leadership in the media; or

   c)had been involved in offences against the Chinese Government.

   CB 203-204 at [33]-[37].

6. The Tribunal also quoted from the report prepared by the German federal government expert on China, part of which said as follows:

   But Chinese authorities didn’t care so much in the last years, even if they know that this person asked for political asylum in foreign countries, because the authorities expect that they left China for economic reasons. Diplomats from western countries monitored the situation of repatriated people, and they found out that in most of the cases there was no political persecution, nor criminal persecution.

   CB 204 at [37] citing: Weyrauch, Dr. Thomas 2006, “Important Aspects on Human Rights in the People’s Republic of China’, 10^th European Country Origin Information Seminar 1-2 December 2005, Budapest: China, ECOI website, 17 March -).

7. The conclusions reached by the Tribunal related to the Data Breach were that:

   a)the Tribunal rejected the applicant’s suggestion that the fact that he is an asylum seeker may have been disclosed by the Data Breach;

   b)the applicant had provided no evidence, and had not claimed that the Chinese authorities were aware of the Second Protection Visa Application or would be likely to become aware of it;

   c)as the Second Protection Visa Application process is confidential the Tribunal was not satisfied that the Chinese authorities would be aware that the applicant had lodged an unsuccessful Protection Visa Application; and

   d)based upon the evidence before it, the Tribunal concluded that the applicant has no profile in China: CB 204 at [38].

8. The Tribunal’s conclusions were based on the country information set out at [17] above. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on available material, are a matter solely for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, a case followed on many occasions by both the Federal Court and this Court, two recent examples being SZTRU v Minister for Immigration & Border Protection [2015] FCA 170 at [48]-[50] per Katzmann J and SZTLJ v Minister for Immigration & Anor [2015] FCCA 1253 at [15] per Manousaridis J. The Tribunal’s conclusions and findings were therefore reasonably open to the Tribunal. In the circumstances, there was no jurisdictional error by the Tribunal in its consideration of the applicant’s claims based upon the Data Breach.

9. The Court notes that in SZVEY v Minister for Immigration & Border Protection [2015] FCA 394 (“SZVEY”) the Federal Court refused to grant an application for leave to appeal from this Court in relation to a decision of the Tribunal where the Tribunal had considered whether or not an applicant had established the basis for a protection visa and the consequences if the applicant were to be returned to China, which involved consideration of what appears to be the same data breach. It was argued that the Tribunal had not expressly or implicitly considered Australia’s non-refoulement obligations, but in circumstances where the Tribunal had considered whether the applicant had established the basis for a protection visa and the consequences if the applicant were to be returned to China having regard to the data breach, the Federal Court dismissed the application both for leave to appeal from this Court and for an injunction restraining the applicant’s removal from Australia: SZVEY at [15]-[18] per Bennett J.

10. In all of the above circumstances, ground 1 reveals no jurisdictional error in the Tribunal Decision.

Ground 2 – Tribunal’s failure to recognise the applicant as a "Sur Place" refugee constituted a breach of procedural fairness

1. Ground 2 of the amended Judicial Review Application is as follows:

   2. As we are already a “Sur Place” refugee, failing to recognise the consituted a violation of Procedual Fairness.

   (Transcribed from the amended Judicial Review Application without amendment).

2. The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act: Migration Act, s.422B. As s.422B of the Migration Act applied to this case, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified by the applicant, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal hearing: see [3]-[4] above; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300. The applicant attended the Tribunal hearing and gave evidence in support of his claims, assisted by an interpreter. Nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Part 7, Division 4 of the Migration Act.

3. This ground of review must be read together with the applicant’s claim enunciated in ground 1 that as a result of the Data Breach he became a refugee sur place.

4. For the reasons set out above in relation to ground 1, there was no jurisdictional error by the Tribunal in not accepting the applicant to be a refugee sur place as a result of the Data Breach.

1. There is nothing in the Tribunal Decision which leads to a concern that the Tribunal failed to afford procedural fairness to the applicant. The Tribunal was aware of, and had regard to, each of the applicant’s claims. For reasons set out in relation to ground 1, the Tribunal approached its task properly, and did not fail to take into account a relevant consideration or take into account an irrelevant consideration.

2. The Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act.

3. For the above reasons, ground 2 reveals no jurisdictional error in the Tribunal Decision.

Ground 3 - Tribunal required to provide natural justice in reaching its decision

1. Ground 3 of the amended Judicial Review Application is as follows:

   3. The Second Respondent owns me nature justices in reaching the decision.

   Particulars

   Through the Second Respondent's decision, it is clearlv demonstrated it does not believe I have attended nether the FaLun Gong and Christianity activities.

   On the decision record. it is clearly stated: “It considers that these discrepancies cast doubt on the truthfulness of his claims.” "

   I have provided the details and all evidences of my FaLun Gong and Christianity activities, however. the Second Respondent with out if finding of facts concluded that my evidences in those activities.

   (Transcribed from the amended Judicial Review Application without amendment).

2. Ground 3 asserts that the applicant was owed “nature justices” which must be read as meaning “natural justice” in reaching the Tribunal Decision. Natural justice for present purposes equates to procedural fairness. Ground 3 identifies no want of procedural fairness within the confines of the procedural fairness that the Tribunal was required to afford the applicant, as set out above in relation to ground 2: see [24] and [27] above. The particulars to ground 3 do not assist the applicant, as they demonstrate that the applicant had a hearing at which he put evidence in relation to his claims, which evidence was considered by the Tribunal, but was not believed.

3. It is the case that the Tribunal considered the applicant’s claims made in his First and Second Protection Visa Applications and found a number of significant discrepancies and other concerns including that:

   a)the applicant’s claims in relation to his detention for Falun Gong activities in the Second Protection Visa Application conflicted with the claims made by the applicant in his First Protection Visa Application, the Tribunal rejecting the applicant’s explanations for the discrepancies which included that before the Delegate his claims were translated by spies who had sabotaged his application, that some claims were lost in translation and that his former migration agent omitted some details, all of which the Tribunal found to be implausible, and as a consequence of which the Tribunal was not satisfied that the applicant had ever been detained by the Chinese authorities due to his Falun Gong activities: CB 199-200 at [14];

   b)the applicant’s claims in relation to his detention for underground church activities had varied markedly over time, and again varied between what was said in support of the First Protection Visa Application and the Second Protection Visa Application, and when invited to comment on the different versions of his claims, the applicant (who at the time was 73 years of age) responded that his memory was not good due to his age, but the Tribunal was not persuaded by that and considered that the discrepancies between the First and Second Protection Visa Application claims cast doubt on the truthfulness of the claims: CB 200 at [15];

   c)the Tribunal rejected a document alleged to support a claim of the applicant having been detained by the Public Security Bureau in China, which document was entirely handwritten, undated, and not on letterhead, and which apart from a stamp bore none of the hallmarks of a document that the Tribunal would expect to come from a government authority, and which the Tribunal did not consider could plausibly be written by a government authority, and which, given the other problems with the applicant’s evidence, meant that the Tribunal did not accept the veracity of the document and considered it was manufactured to support the applicant’s claims: CB 200 at [16];

   d)the Tribunal was not satisfied therefore that the applicant was ever detained by the authorities due to his claimed activities in the underground church: CB 200 at [17];

   e)there were discrepancies in the applicant’s claims in relation to his ongoing practice of Christianity in Australia between what the applicant said to the Delegate and what was said to the Tribunal, and when invited to respond to the Tribunal’s observations, and in particular his assertion that the leaders of the Anglican Church he claimed to attend were Jehovah’s Witnesses, the applicant stated “no comment”, and that given the discrepancies in the applicant’s claims in relation to his church-going activities in Australia the Tribunal did not accept that the applicant had ever attended or become a member of any church in Australia: CB 201 at [19]; and

   f)there were discrepancies in relation to the applicant’s claims concerning his practise of Falun Gong in Australia, as between what the applicant told the Delegate and the evidence given to the Tribunal, and given the discrepancies the Tribunal did not accept that the applicant had had any contact with Falun Gong groups in Australia, nor practised Falun Gong in a public place as claimed: CB 201 at [20].

4. The Tribunal also examined other claims made by the applicant, and observed as follows:

   a)that it was not satisfied that the applicant had been a Christian since 1988 as claimed, nor that he had hosted Bible study groups in his home, or that he was baptised as claimed, given both his evasive and superficial responses to the Tribunal’s questions concerning his practise of Christianity, and the credibility concerns that the Tribunal had, which it had already set out: CB 202 at [22];

   b)that it did not accept that the applicant had a record of activity including having:

   i)listened to illegal radio stations;

   ii)come from a disreputable family; and

   iii)been involved in the 1989 movement in China, including traveling to and residing in Tiananmen Square,

   due to the difficulties with the applicant’s credibility: CB 202 at [23]-[24];

   c)that it was not satisfied that the applicant began to practise Falun Gong for health reasons in 1997 or that he distributed Falun Gong brochures and CDs in his neighbourhood from 2007 to 2009;

   d)that it did not accept that two witness statements tendered by the applicant were genuine, as both conflicted with claims made by the applicant that he had never been detained for his Falun Gong activities in China, as a consequence of which the Tribunal took the view that the witness statements had been manufactured to support his claims, and was therefore not satisfied that the applicant was a Falun Gong practitioner: CB 202 at [25]-[29]; and

   e)the applicant had made inconsistent claims in respect of enquiries made about him by the Chinese authorities, which when raised by the Tribunal was treated dismissively by the applicant as a small matter, and as a result of the other problems with the applicant’s evidence, were rejected by the Tribunal: CB 203 at [30].

5. The Tribunal approached the task of determining the applicant’s credit by reference to proper principles properly applied, and had proper regard to the evidence which bore upon the applicant’s credit. This was not a case where it could be said that there was no evidence warranting the credibility finding made by the Tribunal. In the circumstances, the Tribunal’s approach was correct, and the determination of credit was solely a matter for the Tribunal, the determination being based on evidence and being reasonable in the circumstances: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal’s findings on credibility are a function of the Tribunal par excellence: Durairajasingham at [67] per McHugh J. The Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ. The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ. This Court cannot review the merits of the Tribunal Decision as the findings of fact, including those with respect to credibility, were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

6. The Tribunal’s disbelief of and rejection of, the applicant’s claims was made after consideration of all of the applicant’s statements and evidence in relation to those claims from the time of lodging his First Protection Visa Application. The Tribunal’s inability to be satisfied as to the applicant’s claims was open to the Tribunal on the evidence before it and for the reasons that it gave.

7. The approach taken by the Tribunal and its conclusions as to the applicant's credibility, and its rejection of his claims, does not demonstrate any jurisdictional error on the part of the Tribunal.

8. For the above reasons, ground 3 reveals no jurisdictional error in the Tribunal Decision.

Ground 4 - Tribunal denied the applicant procedural fairness by taking into account an irrelevant consideration

1. Ground 4 of the amended Judicial Review Application is as follows:

   4. The Second Respondent erred by finding as it denied me procedural fairness by take irrelevant consideration in its decision.

   Particulars

   Through the Second Respondent's decision record, I realised in the decision. the Second Respondent has given a lot of weight to the decision of my first PV application.

   For instance. in paragraph 14 stated: “Firstly. the applicant's claims in relation to his detention for his Falun Gong activities in this application conflict with his first application. In this application ...”.

   I had a Legitimate Expectation, the Tribunal will have a fresh hearing for my case without taken any weight about my first PV application findings.

   The Tribunal denial me “Procedural Fairness” during mv hearing.

   (Transcribed from the amended Judicial Review Application without amendment).

2. The applicant is seemingly:

   a)objecting to the Tribunal’s consideration of claims made by him in his First Protection Visa Application;

   b)challenging the weight given by the Tribunal to material in the Tribunal Decision; and

   c)alleging a denial of procedural fairness in the Tribunal hearing.

3. There is no jurisdictional error in the Tribunal having regard to the claims made by the applicant in the First Protection Visa Application, and comparing them with the claims made in the Second Protection Visa Application. Claims made by the applicant in the First Protection Visa Application are relevant to the applicant’s credibility and an assessment of the strength of the claims subsequently made in the Second Protection Visa Application.

4. In relation to the weight to be given to the applicant’s claims that was a matter for the Tribunal: see [34] above. The Tribunal did undertake a fresh assessment of the applicant’s claims, within the limits imposed by s.48A of the Migration Act and the judgment in SZGIZ, and assessing the weight to be given to the applicant’s claim. The applicant’s “legitimate expectation” was therefore met, within the statutory constraints imposed by the Migration Act.

5. The final particular to ground 4 asserts that the applicant was denied procedural fairness during his hearing before the Tribunal. This bald assertion by the applicant is unsupported by any evidence, and, in any event, for reasons set out in relation to grounds 2 and 3 there was no denial of procedural fairness in the Tribunal hearing.

6. For the above reasons ground 4 reveals no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that the applicant’s four grounds of review reveal no jurisdictional error in the Tribunal Decision. It follows that the application must be dismissed.

2. The Court will hear the parties as to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 3 June 2015