AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2009 >> [2009] FMCA 549

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

SZNIQ v Minister for Immigration & Anor [2009] FMCA 549 (18 June 2009)

Last Updated: 19 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIQ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of Refugee Review Tribunal – no denial of procedural fairness – adverse credibility finding – no breach of s.424A – Tribunal’s power under s.427 is discretionary – Tribunal entitled to give no weight to corroborative evidence – no bias – other complaints not supported by evidence – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.427, 422B, 65, 36, 425, 425A, 441A, 441C, 424A, 91R(3)
Migration Regulations Act 1994 (Cth), reg.4.35D

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751
SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693
Minister for Immigration and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437

Applicant:
SZNIQ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 622 of 2009

Judgment of:
Nicholls FM

Hearing dates:
14 May 2009 and 11 June 2009

Date of Last Submission:
11 June 2009

Delivered at:
Sydney

Delivered on:
18 June 2009

REPRESENTATION

Appearing for the Applicant:
In person

Solicitors for the Applicant:
Nil

Appearing for the Respondents:
Mr A Markus

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application made on 16 March 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $3,800.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 622 of 2009

SZNIQ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 16 March 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 February 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The respondent Minster has put before the Court a bundle of relevant documents (Court Book – “CB”) from which the following background may be discerned.
  2. The applicant is a citizen of Lebanon, who arrived in Australia on
    19 August 2006, and applied for a protection visa on 24 July 2008 (reproduced at CB 1 to CB 31, with annexures).

Applicant’s claims to protection

  1. The applicant claimed to fear persecution in Lebanon on the grounds of religion and political opinion.
  2. The applicant, who was born to the Muslim faith, claimed to have been associated through childhood friends with the “Christian Nationalist Party/Lebanese Forces”.
  3. The applicant claimed that he joined friends who were active members of the “Christian Nationalist Party/Lebanese Forces” to raise money for the party and to “help” poor Christian people who were “dominated” and “persecuted” by the “local Muslims.” The applicant claimed that his activities “attacked the emotion of other Muslim leader as well as my parents.”
  4. He claimed to have converted from Islam to Christianity, because he had received “several threats” over the telephone stating that he would be “killed”, and that it was these types of experiences which “contributed to the shattering of his confidence in the religion of Islam and its teachings”.
  5. When his “conversion” to Christianity was discovered, he was “ostracized” by his family and consequently “thrown” out of the family home. The applicant received “death threats” from Islamic militants. He stated that there was a “fatwa” to shed his blood.
  6. In October 2005 the applicant visited Australia and met an Australian girl of the Muslim faith, who had Lebanese ancestry. The applicant claimed that they fell in love, and thought that “everything in the relationship would work pretty well regardless of their religious differences.”
  7. However, the applicant stated that the girl’s feelings changed towards him because of his “conversion” to Christianity and that, as a result of this, “religious differences emerged as a major issue in their relationship.” The applicant claimed that, because she was aware of his situation of loosing his right to stay in Australia, she would routinely “abuse” him “verbally” and “physically”. He decided to end the relationship soon after, despite his immigration status.

The Delegate

  1. He then sought advice from a migration agent who suggested to him that he should apply for a subclass 457 Business visa, which he did. This application was refused.
  2. The applicant was interviewed by the Minister’s delegate on
    19 September 2008 (CB 57 to CB 59). The delegate had “serious credibility concerns” about the applicant’s claims, was not satisfied that the applicant’s “life was threatened”, or that there would be an “attempt” on his life because of his “political opinion” and “religious belief”. The delegate found some of the claims to have been “fabricated”. The delegate was not satisfied that the applicant would “face mistreatment” on return to Lebanon (CB 59 to CB 62).
  3. On 21 October 2008, the delegate of the respondent Minister refused to grant a protection visa to the applicant (CB 52 to CB 63).

The Application to the Tribunal

  1. On 19 November 2008 the applicant applied to the Tribunal for review (CB 64 to CB 67). On 4 December 2008 the applicant was invited to a hearing before the Tribunal to be held on 29 January 2009 (CB 70 to CB 71). Previously, on 22 January 2009, the Tribunal had received a typed statement from the applicant, which was not signed or dated (CB 73 to CB 75). This statement essentially mirrored the annexed statement to the applicant’s protection visa application (CB 28 to CB 31). The applicant also attached to this statement the following two documents:

The Tribunal hearing

  1. The applicant appeared before the Tribunal at a hearing on 29 January 2009. He was assisted by an interpreter in the Arabic (Lebanese) language. The Tribunal’s account of what occurred at the hearing is set out in its decision record (at CB 92.45 to CB 98.75).

The Tribunal Hearing

  1. The Tribunal concluded that it was “not satisfied that the applicant is credible.” In all, it found that the applicant’s claims were “fabricated” to “bolster his protection claims”. The Tribunal did not believe that the applicant had “converted” to Christianity from Islam, nor that he had been a member of the Lebanese Forces ([77] at CB 98).
  2. The Tribunal was satisfied that the applicant had some knowledge of Christianity ([82] to [86] at CB 99). However, in all, the Tribunal found the applicant’s religious claims to be “limited”, “vague,” “general” and lacking in “details”.
  3. The Tribunal was not satisfied that the baptism certificate contained “truthful and/or accurate information”, and did not give the certificate “weight” ([87] at CB 101).
  4. In all, the Tribunal did not accept that the applicant was a Christian, or that he ever committed to, or was involved in, any Christian related activity in Lebanon or that had been baptised. It rejected his claim to have been perceived as anti-Islamic or that he had been in conflict with his former fiancé because of this issue ([88] at CB 101).
  5. The Tribunal also did not accept that the applicant was a “member”, or a “supporter”, of the “Lebanese Forces” or that he was “harmed” because of his “activities” or his “religious beliefs”. The Tribunal found that the applicant’s claims in this regard were “vague” and lacked “important details”, which raised “doubts about the veracity of his claims and credibility generally” ([90], [91], [94]). Further, the Tribunal was not satisfied that the applicant’s (Lebanese Forces) “identification card” contained “truthful and/or accurate information” (CB 93).
  6. Further, in consideration of the applicant’s explanations as a reason for the delay in making his protection visa application (that he sought advice from a “lawyer” or migration agent who advised him to apply for a business visa), the Tribunal was satisfied that the applicant made his protection visa application as a “last resort” to enable him to remain in Australia. The Tribunal was satisfied that the delay raised “further doubts about the veracity of his claims and his credibility generally.”
  7. In all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations. It therefore affirmed the delegate’s decision.

Application before the Court

  1. The application filed on 16 March 2009 puts forward the following two grounds:

[No particulars have been provided.]

Hearing before the Court

  1. The matter was set down for hearing on 14 May 2009. At the hearing before the Court the applicant appeared unrepresented. He was assisted by an interpreter in the Arabic (Lebanese) language. Mr A Markus appeared for the first respondent.
  2. No written submissions had been received from the applicant.
    In addition to the Court Book, the Court had before it the Minister’s Response, and written submissions filed on his behalf.
  3. At the hearing, the applicant put forward complaints about the Tribunal’s decision, the conduct of the Tribunal’s hearing, and the Tribunal member, which had not been raised in the application. He stated that he would “verbally advise” the Court of the grounds that he wished to rely on.
  4. The applicant raised the following:
  5. The applicant had (at least) since the first Court date in this matter (on 8 April 2009) to obtain legal advice and to put proper grounds with particulars, and evidence, in support, before the Court. While it appears that he did consult a lawyer on the panel of the Court’s Legal Advice Scheme on 21 April 2009, nothing further was put before the Court.
  6. I explained to the applicant that the matters which he sought to raise, such as, for example, the very serious allegation of bias on the part of the Tribunal, required evidence in support. He has not put such evidence before the Court.
  7. It is not clear whether the applicant was being disingenuous, or whether he did not understand the Court’s attempts to establish whether he sought an adjournment to enable him to provide evidence. (In light of his statement: “I am not asking for an adjournment”, despite also saying: “If you do not want to give me more time then I have the evidence here and the Court can make a decision”. The latter comment may suggest that the applicant was under some misapprehension that his statement or submissions constituted evidence.)
  8. In any event, I did adjourn the final hearing until 11 June 2009 to enable the applicant to obtain further assistance as to how to put evidence relevant to his complaints before the Court.
  9. At the resumed hearing on 11 June 2009 the applicant appeared in person. He was assisted by an interpreter in the Arabic (Lebanese) language. Mr A Markus appeared for the first respondent.
  10. The applicant has now provided written submissions (filed 2 June 2009) to the Court. He did not take up the opportunity to provide further evidence.
  11. The written submissions make the following complaints:
  12. At the hearing the applicant at first stated that he had nothing further to say. After hearing submissions from Mr Markus, he repeated his concerns about the Tribunal’s failure to believe him and its failure to accept the baptism certificate and the “ID” card. He insisted that he had a friend (at the back of the Court) who knew the Tribunal member was from a Lebanese background. Further, that when he raised the issue of the baptism certificate at the hearing, “she got angry and raised her voice”.

Ground 1: Denial of Procedural Fairness

  1. This ground asserts that the Tribunal failed to give the applicant procedural fairness when making its decision. No particulars have been provided to the Court.
  2. This is a case to which s.422B of the Act applies. This means that the provisions that are set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]).
  3. Considering the material that has been put before the Court, I cannot see that the Tribunal failed to comply with the procedural code as set out in Division 4 of Part 7 of the Act. In short, I cannot see that the applicant was denied procedural fairness.
  4. The statutory regime relevant to applications for protection visas is, in essence, found in ss.65 and 36(2) of the Act. In effect, these sections require the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa. This means that the Tribunal must be satisfied that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the United Nations Refugee Convention. If the Tribunal is unable to reach this requisite level of satisfaction, the protection visa must be refused (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
  5. The applicant was invited to a hearing before the Tribunal pursuant to s.425(1) of the Act. He attended the hearing. The invitation was sent to the applicant’s address for correspondence (CB 66) pursuant to s.425A(2)(a). The Tribunal complied with ss.441A(4), 441C(4) and reg.4.35D of the Migration Regulations Act 1994 (Cth).
  6. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), the High Court explained the Tribunal’s procedural fairness obligations in relation to the conduct of a fair hearing pursuant to the obligation in s.425. I note, relevantly, what was said by the High Court at [33]:
  7. Further, that unless the Tribunal takes steps to identify some other issue (other than the issue that the delegate considered dispositive): “the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review.’...” (SZBEL at [35]). In that case, the Court found that the Tribunal did not accord the applicant procedural fairness because it did not give the applicant: “a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” (SZBEL at [44]).
  8. The determinative issue before the delegate that disposed of the protection visa application in the current case was plainly that the delegate found adversely on the issue of the applicant’s creditability. The delegate rejected the applicant’s factual account in relation to his claims. The delegate stated: “I have carefully considered the applicant’s claims and find them not to be credible ...” (CB 60.5). Further: “All of these matters, considered cumulatively, strongly suggest that the applicant has fabricated these claims and that, in fact, he was not of any particular interest to radical Islamist groups or targeted by them ...” (CB 61.8). Following any plain reading of the delegate’s decision record, the applicant could have been in no doubt that his credibility, and the truth of his factual account, was squarely at issue. This was the very issue that was determinative of the review before the Tribunal.
  9. Further, and in any event, any plain reading of the Tribunal’s decision record reveals that it squarely put to the applicant the concerns that it had with his credibility, and the applicant was given the opportunity to address the Tribunal’s concerns.
  10. Despite the opportunity, the applicant has not put any transcript of the hearing before the Court to challenge the Tribunal’s account of what occurred. I note, in particular, that in relation to each aspect of his claims the Tribunal “sufficiently indicated” (SZBEL at [47]) its concerns about the credibility of his claims (see in particular: [47] to [49], [53], [55] to [56], [61], [66] to [68], and [72] to [73]).
  11. There is no failure of procedural fairness with reference to s.425 on the material before the Court. Other aspects of Div 4 are dealt with below.

Ground 2: Breach of Section 424A

  1. Ground two complains that the Tribunal breached s.424A of the Act. No particulars have been provided to the Court.
  2. On the material before the Court the “information” relied on by the Tribunal in the current case for the purposes of s.424A(1) falls into the following exceptions:
  3. Further, the evidence in relation to the information given by the applicant, which was used adversely in assessing his claims, was not “information” for the purposes of s.424A because none of this evidence was: “in [its] terms a rejection, denial or undermining of the [applicant’s] claims to be a [person] to whom Australia owed protection obligations” (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]).
  4. To the extent that the Tribunal made reference to inconsistencies in the applicant’s claims, and to the extent that the Tribunal identified either a lack of detail, or doubts, and even inconsistencies as between what the applicant had said at the hearing before it and what he had said in earlier statements, the Tribunal’s reasoning in this regard was also not “information” for the purposes of s.424A(1) (see SZBYR at [18]).
  5. No breach of s.424A is evident.

Other Complaints: s.427

  1. Further, in ground one of the application, specifically, the applicant complains that the Tribunal breached s.427 of the Act by not investigating the authenticity of his (Lebanese Forces) “ID” card, and that it failed to investigate the authenticity of the baptism certificate that he had submitted.
  2. Section 427(1)(d) certainly provides the power to the Tribunal to require the Secretary to the first respondent’s Department to arrange for any investigation that it thinks necessary with respect to the review. However, clearly, there is no statutory compulsion on the Tribunal to initiate any such investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Gummow and Hayne JJ at [43] with whom Gleeson CJ agreed at [1] NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18] to [21], Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169 to 170).
  3. The use of this power is discretionary and may be engaged where the Tribunal considers it necessary. In relation to the “ID” card, the Tribunal did consider the applicant’s request that it investigate the authenticity of this document (see [93] at CB 102). Ultimately, the Tribunal found that it would not be satisfied that the card contained truthful or accurate information, given the applicant’s evidence about his involvement with the Lebanese Forces, and given the concerns that it had with his credibility.
  4. Mr Markus submitted that the applicant has not pointed to any obvious enquiry that could have been made and has not established that such an obvious enquiry could have resulted in any particular outcome. As a submission arising from the evidence before the Court, I agree.
  5. Mr Markus’s submission is that it was open to the Tribunal to find that the documents did not assist it in its task and that, therefore, there was no jurisdictional error.
  6. Mr Markus submitted that, in this case, the Minister does not seek to rely on an “Applicant S20 type situation” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 /2002 [2003] HCA 30 – “Applicant S20”). The Minister’s position is that the Tribunal was sufficiently confident in its relevant conclusions so that it felt free to give no weight to the two documents.
  7. I agree with the submission. In relation to the claims based on religion, the Tribunal gave detailed reasons for not accepting the applicant’s account of relevant events and, in particular, in finding that he was not a Christian (see [78] to [88]). In relation to the claims based on membership of the Lebanese Forces, the Tribunal similarly found the applicant’s account to lack credibility (see [90] to [92]).
  8. But further, in my view, the Tribunal’s credibility finding as it arose out of both the applicant’s “essential claims” was of such definite character as to engage what was said in Applicant S20 at [49]:
  9. The critical passage in the reasons of the Tribunal is at [77] (CB 98):
  10. The baptism certificate and the “ID” card were respectively directly relevant to these two “essential” claims. The Tribunal’s consideration of the applicant’s credibility, based to a large extent on his own oral evidence, was definite and not attendant with such doubt, or something less than an unequivocal finding, such that the documents provided in corroboration were not sufficient to overcome this finding on credibility.
  11. In relation to the baptism certificate, the Tribunal found ([87] at CB 101):
  12. In relation to the “ID” card, the Tribunal found (at [93]):
  13. The Tribunal’s analysis in relation to both documents was that it gave no weight to either because of the applicant’s evidence in relation to his two central claims, and because of the adverse view of the applicant’s credibility. In essence, the Tribunal reasoned that, because the applicant could not be believed, it could not be satisfied with the “alleged corroboration”. This was open to the Tribunal on what was before it.
  14. In these circumstances, I cannot see error in the Tribunal deciding to not exercise the discretionary power available to it to undertake further investigations. The Tribunal’s finding on credibility was open to it on what was before it. In the circumstances, its findings as to the value of the two documents were also open to it. I cannot see that the circumstances compelled the Tribunal to conduct any further investigation. This complaint is not made out.

Other Complaints: Bias

  1. The applicant also makes a number of complaints, both in written submissions and before the Court, that amount to allegations of bias or the apprehension of bias on the part of the Tribunal.
  2. The applicant submitted that the Tribunal member was of Lebanese ethnicity, a Christian, and from his village in Lebanon. The assertion being that, because of this, she did not believe the applicant when he said he had converted to Christianity, that she kept “narrow thoughts” on this issue, and that she did not accept that anyone could convert from Islam to Christianity.
  3. The applicant first raised these allegations when this matter first came on for final hearing on 14 May 2009. I took some care to ensure that the applicant understood the seriousness of the allegations that he was making against the Tribunal member. That is, allegations impugning the integrity of the Tribunal member.
  4. The final hearing was adjourned to allow the applicant an opportunity to properly articulate this complaint, and other new complaints, and to provide evidence in support. The need for evidence in relation to an allegation of bias was specifically put to him. As was the seriousness of this issue and the benefit to him if he were to seek assistance in understanding what was required.
  5. The applicant has had the benefit of some legal assistance. He consulted a lawyer on the panel of the Court’s Legal Advice Scheme. Notwithstanding the further opportunity provided to him, the applicant chose subsequently to press his allegations in written submissions, but provided no evidence whatsoever to support his claims.
  6. An allegation of bias and an apprehension of bias are serious charges to make against any decision maker. They must be clearly made and distinctly proved (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).
  7. It is rare that such an allegation can be made out with reference to the decision record alone (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
  8. The applicant asserts that the Tribunal member was of Lebanese background. The applicant submits that he: “can not provide any proof but I strongly feel that the honourable Court can find that if it wants.” Putting to one side the issue of the lack of evidence, such a complaint, on its own, cannot assist the applicant even if it were the case that the Tribunal member was of such ethnicity.
  9. If the applicant seeks to assert that the Tribunal member knew him, or knew of him, when he was in Lebanon and was influenced to a predetermined view of him because of this, then no evidence has been presented to this Court to support such a claim. Merely being of Lebanese ethnicity (even if this were to be the case) goes nowhere near to support an allegation of bias, or the apprehension of bias.
  10. Mr Markus submitted that the applicant’s submissions make no explicit allegation of bias on the part of the Tribunal and, therefore, require no response from the Minister, given that such allegations must be plainly and clearly made. I agree.
  11. If it was the applicant’s intention to make such allegations without evidence in this case then, as was put to him, such allegations cannot be made out without evidence. This complaint does not succeed.

Other Complaints: Interpretation

  1. The applicant also made assertions (in oral submissions) about the standard of interpretation at the Tribunal hearing, that the Tribunal’s account of the hearing was “not correct”, and that the Tribunal member raised her voice and “got angry” when he raised the issue of the baptism certificate.
  2. Again, despite the specific opportunity provided to the applicant, he has put no evidence before the Court to support such allegations. The Court cannot make findings, or draw inferences, as to what may have occurred at the hearing without evidence on which to base such findings. This was made clear to the applicant at the first occasion of the final hearing. These complaints therefore, without evidence, cannot assist the applicant.

Other Complaints: The Oath

  1. In written and oral submissions the applicant made reference to his having taken an oath on the Bible before giving evidence to the Tribunal, yet the Tribunal did not believe him. He refers to [89] (CB 101) of the Tribunal’s decision record.
  2. The Tribunal found (at [89]) that, while it was plausible that the applicant engaged in “Christian-related conduct in Australia”, “including taking the oath on the Bible in the course of the hearing”, it could not be satisfied that such conduct was otherwise than for the purpose of enhancing his application for a protection visa.
    It therefore disregarded such conduct pursuant to s.91R(3).
  3. First, I cannot see error in how the Tribunal approached the issue emanating from s.91R(3). The Tribunal rejected the applicant’s claims to have been a Christian in Lebanon on the basis of the adverse view that it took of his evidence. While it accepted that he had engaged in some relevant conduct in Australia, it was open to it to proceed as it did (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).
  4. Second, to the extent that the applicant complains that the Tribunal should have believed him because he took an oath on the Bible, the Tribunal explained to the applicant at the hearing (see [48] at CB 92) that it had difficulty with his evidence, his explanations and the inconsistencies, and that this would raise doubts as to “the veracity of his claims”. It was the applicant himself who raised the issue of having sworn on the Bible. In response, the Tribunal properly put him on notice that: “the Tribunal indicated to the applicant that the Tribunal cannot make an assumption that the applicant would be truthful on the basis of having taken the oath.”
  5. Giving evidence under oath, whether in Court or before a Tribunal is, of course, a serious matter. But when read in context, the Tribunal’s response to the applicant was perfectly reasonable. The Tribunal had put to him that there were inconsistencies and difficulties with his evidence. On the only account of what occurred at the hearing, the applicant’s response was that he had sworn to tell the truth. There was no real attempt to address the substance of the Tribunal’s concerns.
  6. It is the case that the Tribunal does not have to uncritically accept any, or all, of what an applicant says to it. Nor is it required to find evidence to “disprove” an applicant’s claims (see Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451). In the current case it was open to the Tribunal to find adversely to the applicant’s credit, notwithstanding his oath. No error is revealed.
  7. Similarly, the applicant’s complaint that the Tribunal did not accept his explanation as to his limited knowledge of Christianity does not assist him before this Court. It is not clear that he gave this explanation to the Tribunal. In its account of what occurred at the hearing, the Tribunal reports that it put its concerns about his lack of knowledge to him (see [66] at CB 96). The applicant’s reported responses do not appear to be consistent with what he now asserts.
  8. If the applicant is seeking to reagitate this issue before the Court, then such an attempt cannot assist him. This Court cannot engage in merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259; [1996] HCA 6). But, in any event, the Tribunal’s finding on this issue was open to it, and it gave reasons. This complaint does not succeed.

Conclusion

  1. For the applicant to succeed, the Court would need to find jurisdictional error in the Tribunal’s decision. I cannot see such error as asserted, or even implied, by the applicant, nor otherwise. The application is therefore dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: C Darcy


Date: 18 June 2009

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2009/549.html