SZNJV v Minister for Immigration & Anor [2009] FMCA 937 (23 September 2009)

Last Updated: 25 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJV v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 937

MIGRATION – Review of decision of Refugee Review Tribunal – where applicant did not appear at Tribunal hearing – whether open to Tribunal to find that applicant was “not a credible witness” – whether jurisdictional error – findings supported by alternative bases – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 51A, 54, 55, 58, 59, 65, 91V, 234, 420, 422B, 424, 424A, 424B, 425, 425A, 426, 426A, 427, 428, 441A, 441C, 426A Statutory Declarations Act 1959 (Cth) ms.11 Migration Regulations 1994 (Cth) reg.435D

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 Prasad v Minister of Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 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; (2001) 179 ALR 425 SZMZL v Minister for Immigration and Citizenship [2009] FCA 971 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZFQS v Minister for Immigration [2005] FMCA 715 SZISC v Minister for Immigration & Anor [2007] FMCA 1365 SZISC v Minister for Immigration and Citizenship [2008] FCA 134 SZKEU v Minister for Immigration & Anor [2007] FMCA 1319 SZKNE v Minister for Immigration & Anor [2007] FMCA 1189 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 VEAJ of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 678 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167 SZEVE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 390 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant:

SZNJV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 747 of 2009

Judgment of:

Nicholls FM

Hearing date:

22 May 2009

Date of Last Submission:

5 June 2009

Delivered at:

Sydney

Delivered on:

23 September 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

-

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application made on 30 March 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 747 of 2009

SZNJV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act’) on 30 March 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 6 March 2009, which affirmed the decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant.

Background

2. The applicant is a citizen of India who arrived in Australia on 5 July 2008, and applied for a protection visa on 19 August 2008. (Reproduced at Court Book – “CB”: CB 1 to CB 25, with annexures.)

Claims to Protection

3. The applicant’s claims to protection were set out, variously, in answers to questions in the application form:
   1. CB 17:
      • “I had to leave my country because I am harassed, threatened and assaulted by the public.”
   2. CB 18:
      • “I have a fear that I will be harassed, beaten or killed.”
   3. CB 19.1:
      • “The members of the community who do not want to follow the freedom of expression or freedom of religion. I am a member of Sacha Sauda. Majority of people do not believe in my Guru and philosophy of my Guru. When they join together they burn the houses of believers, they harass them and sometimes they kill them.”
   4. CB 19.4:
      • “My belief is in my Guru. I cannot change this. The majority population of Punjab is against my Guru. Even the Government of Punjab is against my Guru and they do not protect the followers.”
   5. CB 20:
      • “The Government of Punjab is against my Guru and Sacha Sauda. The police follows what ever the government wants. They do not protect ordinary people. I am afraid from the public as well as from the police.”

The Delegate

4. The applicant was interviewed by the Minister’s delegate on 14 November 2008. (A summary of that interview is reproduced at CB 30 to CB 31.)
5. The applicant made a further claim that she had suffered harm from her husband and her son who “used to beat her”. She claimed that she sought protection from the police, but they did not provide it. She left India to escape this situation.
6. The delegate had: “some difficulty accepting the applicant’s claims as credible.” The delegate found variously (CB 40 to CB 42) that the applicant’s written claims were “extremely brief,” that “many of her responses at interview seemed evasive or unconvincing,” and that some “new claims contradicted information in her application.”
7. The delegate found that:
   1. On the available evidence she could not be: “satisfied that the applicant’s claims genuinely reflect her circumstances” (CB 41.7).
   2. The applicant’s desire to remain in Australia was based on “economic factors,” “rather than any Convention issue” (CB 41.8).
   3. In any event, that “if the applicant’s claims are genuine, she will be able to return to India and seek refuge with the Dera Sacha Sauda ... and obtain the protection of the Indian authorities” (CB 41.9).
8. The delegate refused the application on the basis that (CB 42.2):
   • “Because I am satisfied there has been no failure of state protection, and that she can relocate away from her village and her family if she so chooses, I am satisfied that the applicant does not face a real chance of persecution for any Convention reason should she now return to India and she is not in need of protection in Australia.”

The Tribunal

9. The applicant applied for review by the Tribunal on 18 December 2008 (CB 43 to CB 46). No additional claims were made. The applicant’s address for receiving correspondence was given as her residential address (CB 44 to CB 45). No authorised recipient was nominated (CB 45).
10. The Tribunal wrote to the applicant by letter dated 19 December 2008. On the evidence before the Court, it appears to have been sent by prepaid post to the applicant (CB 47 to CB 48). In that letter the Tribunal set out the process by which it was going to conduct the review. In particular, the letter set out the importance of attending a hearing, describing it as the opportunity to give the Tribunal evidence and arguments in support of the application.
11. On 27 January 2009 the Tribunal received from the applicant, by post, a “Change of Contact Details” form, giving a post office box address as the new postal address. The applicant did not indicate any new residential address. She relevantly wrote on the form: “Don’t know yet. I am going to move” (CB 53).
12. On 27 January 2009 the Tribunal also wrote to the applicant inviting her to comment on, or respond to, certain information in writing. The letter was sent to the address for service (the post office box address). It required the comments to be provided by 19 February 2009 (CB 54 to CB 56).
13. On 27 January 2009 the Tribunal also wrote to the applicant inviting her to appear at a hearing before the Tribunal on 5 March 2009 at 10am (CB 57 to CB 58). This, again, was sent to the most recently provided address for service.
14. The letter enclosed a “Response to Hearing Invitation” form and directed the applicant to complete and return that form to the Tribunal by 12 February 2009. No response from the applicant was received by the Tribunal.
15. Copies of the Tribunal’s correspondence were also sent to the applicant’s residential address as had last been notified (CB 60 to CB 61).
16. The applicant did not attend the hearing before the Tribunal on the date and at the place that had been scheduled for it. Nor did the Tribunal receive any communication from the applicant in the nature of any application for a postponement, or even an explanation for her failure to attend (CB 68).
17. In those circumstances, the Tribunal stated that it proceeded to make a decision without taking further action to enable the applicant to appear before it (CB 71 to CB 77, in particular, [20] at CB 74).
18. The Tribunal found that the applicant was “not a credible witness” and that it could not be satisfied that her claims were true because the Tribunal was not able to discuss the claims at a hearing. (See [40], [41] and [43] at CB 76 to CB 77. See further below.)
19. The Tribunal affirmed the decision under review ([46] at CB 77).
20. Some two weeks later the invitation to hearing letter, sent to the post office address, was returned. The envelope was marked “Unclaimed” (CB 79 to CB 81).

Application to the Court

21. In her application to the Court, the applicant puts forward the following as grounds of the application:
    • “(1) The Tribunal has not made any effort to make investigation regarding my claims. It has vast resources and the information about my claims is well known in India and in Indian press. It is wrong to say that I have no well founded fear of persecution if I return back to India.
    • (2) The Tribunal is wrong to state that I have provided any misinformation in the application forms. It is a fact that I did not work in India and I was always a housewife. I suppose the Tribunal has made a wrong conception about me as I could not provide details for my employment and that I lived at one address. It is a fact that I did not work in India.”

Hearing before the Court

22. At the hearing before the Court the applicant appeared in person.
    She was assisted by an interpreter in the Punjabi language. Mr H P T Bevan of counsel appeared for the first respondent.
23. The applicant submitted that she feared persecution if she were to return to India. She asked that she be allowed to stay in Australia for two years and that she would be able to return at that time. The applicant claimed that she feared domestic violence in India. She did not go to the Tribunal hearing because she was “in hiding”.
24. Mr Bevan told the Court that the respondent sought to rely on written submissions.

The Applicant’s Submissions

25. The applicant’s submissions before the Court did not assert jurisdictional error on the apart of the Tribunal. This Court is not able to grant permission to the applicant to remain in Australia for any period of time. Her explanation as to why she did not attend the Tribunal hearing does not assert error on its part.

The Grounds

26. Ground one complains that the Tribunal did not make any effort to investigate the applicant’s claims. No particulars have been provided
27. As the Minister submits, there is no general obligation on the Tribunal to make its own investigation or enquiries to make out an applicant’s case. (See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26].) Nor can I see that the circumstances of this case provide for any requirement to investigate as was found in Prasad v Minister of Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 or in, for example, W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432.
28. Ground two, at best, seeks to challenge factual findings made by the Tribunal as to the applicant having provided “misinformation” in her protection visa application. (See [38] at CB 76.) On its own, this complaint does not rise above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

Consideration of the Grounds

29. This is a case to which s.422B of the Act applies. This means that the matters 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) 151 FCR 214; [2006] FCAFC 61 at [59]- [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
30. On what is 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.
31. Pursuant to s.425 of the Act, the Tribunal is obliged, unless certain circumstances are found to exist, to invite an applicant to attend a hearing to give evidence and present arguments in regard to the issues arising in relation to the decision under review. In particular, the Tribunal is obliged to do this where it considers that it cannot make a decision favourable to the applicant on the basis of the material that has been put before it.
32. It is clear that the Tribunal complied with its statutory obligations pursuant to s.425 of the Act to invite the applicant to a hearing. From the material before the Court, I am satisfied that the Tribunal also complied with its obligations pursuant to s.425A of the Act.
33. I note the provisions of s.425A of the Act and the requirement that the applicant be sent a letter consistent with that section. The letter must be sent by one of the methods specified in s.441A. The period of notice of the hearing must be at least the prescribed period (in this regard, see s.425A(3)), and that s.441A(4) permits notice to be given to the applicant via prepaid post, and that such notice must be dispatched to the applicant’s last address for service provided to the Tribunal, or to the applicant’s last residential or business address.
34. The provisions of s.441C of the Act provide that the applicant is taken to have received the letter so dispatched seven working days after the date of the letter. The prescribed period for the purposes of s.425A of the Act is set out in reg.4.35D(b) of the Migration Regulations 1994 (Cth). The letter was set to the applicant’s post office box address, which was the address given as the address for receiving correspondence.
35. On the basis of the relevant material in the Court Book, and as referred to above, I am satisfied that the Tribunal complied with its obligation to invite the applicant to a hearing, and complied with the relevant attendant statutory and regulatory requirements.
36. In the circumstances, and given the failure of the applicant to appear at the appointed place and at the scheduled time, it was plainly open to the Tribunal to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it. This is particularly the case where, as in the case before the Court now, the Tribunal has heard nothing from the applicant as to any difficulty in attending. I note that the Tribunal has the power to proceed pursuant to s.426A of the Act where a hearing invitation has been properly given under the Act and it is under no further obligation to search the papers lodged with it to discern any other means of communicating with the applicant (Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39], per Spender, French and Cowdroy JJ).
37. That the letter inviting the applicant to the hearing was subsequently returned as unclaimed does not assist the applicant in the circumstances. The letter was not returned to the Tribunal until well after the scheduled date for hearing, and well after the decision was made (see CB 79).
38. But even if it had been received prior to the date of decision, it would also not have assisted the applicant. The Tribunal complied with its statutory obligations, and the applicant is deemed to have received the invitation. In any event, I note that the Tribunal also sent the letter to her home address (CB 60 to CB61). This does not appear to have been returned as undeliverable.
39. Section 424A of the Act obliges the Tribunal to invite the applicant to comment on information that it considers would be the reason, or part of the reason, for affirming the decision under review. This obligation, however, is not engaged in circumstances where the reason for the Tribunal’s decision was a result of the lack of detail or information or particulars before it. (See, for example, SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208.)
40. In any event, in this case the Tribunal did write to the applicant inviting her to comment on information which it said would be the reason for affirming the decision under review (see CB 54 to CB 56).
41. In all, the grounds of the applicantion are not made out.

Other Considerations - “Not a Credible Witness”

42. The statutory regime relevant to applications for protection visas is found in ss.65 and 36(2) of the Act. In effect, these sections require the Tribunal to reach the requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa. In essence, 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 Refugees Convention.
43. 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.) I note, and agree, with the first respondent’s written submissions in this regard.
44. During the hearing, I did raise one issue of concern with Mr Bevan. The issue was whether, in the circumstances of the current case, it was open to the Tribunal to make a positive finding that the applicant was “not a credible witness”.
45. In my view, there is a real and qualitative difference between a Tribunal not being able to reach a positive state of satisfaction that, on what is before it, an applicant meets the definition of “refugee” such that the protection visa must not be granted, and making a positive finding, on the other hand, that the applicant is “not a credible witness” as being the basis for the decision. For example, the lack of satisfaction derives from the lack of detail or insufficient particularity in the applicant’s claims, as opposed to a finding that, in effect, the applicant has told lies.
46. That is, the reason for affirming the decision under review is not simply that the applicant’s failure to attend the hearing, which was a failure to provide explanations, evidence, and argument, such that the Tribunal’s state of lack of satisfaction (as notified in the letter of invitation) is left unaltered, but that the reason for affirming the decision is a positive finding that the applicant was “not a credible witness”.
47. Such a finding is, in my view, a serious matter. It is one thing to say that an applicant’s claims are vague or lacking in substance. It is quite another to say that an applicant is not credible. That is, to say that she has lied.
48. I draw the analogy with claims that are sometimes made, without foundation or evidence, that a Tribunal member was biased, or that an apprehension of bias can be reasonably discerned. Such allegations, going to the integrity of the Tribunal member, are serious, and should not be lightly made (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; (2001) 179 ALR 425).
49. Further, in the current case, the applicant did not appear before the Tribunal to give evidence as a witness. The issue on which I asked for assistance from Mr Bevan therefore was whether in these circumstances it was open to the Tribunal to describe the applicant as “not a credible witness”, and to make findings, three times in its analysis, based on this finding. (See [18] above.)
50. I granted leave for both parties to make written submissions on this matter. Submissions were subsequently received from the respondent. No submissions were made by the applicant.

Consideration

51. Was it open, therefore, in the circumstances, for the Tribunal to find that the applicant was not a “credible witness”, and to rely on this finding in affirming the decision under review? If not, does this reveal jurisdictional error?
52. The respondent submits that this finding was open to the Tribunal and relies on the following.
53. First, that the applicant made a valid visa application. In two relevant parts of this application (parts “B” and “C” – see CB 9 and CB 23) the applicant made certain declarations.
54. The first declaration was said to have been made after notice was given of the following:
    • “Warning: The provision of false or misleading information in this declaration is subject to penalties under the Migration Act 1958.”

This appears to be a reference to s.234(1)(b) of the Act – prohibiting the provision of false or misleading information to an officer under the Act.

55. The second is a declaration made pursuant to the Statutory Declarations Act 1959 (Cth). In particular, the reference to s.11 of that Act, which provides for penalties where a person “intentionally” makes “a false statement in a statutory declaration.”
56. The respondent submits that the applicant made both declarations, affirming that the information that she had supplied in the application form was correct.
57. The submission is that this should be read, in context, with what appears at “Part C” of the application form (at CB 17), where under the heading: “Your reasons for claiming to be a refugee” the form directs the applicant to: “provide any evidence that you have which supports your claims.”
58. The submission is that “evidence” here must be given its plain and ordinary English meaning, rather than any “technical meaning at law.” Noting that neither “witness”, “credible”, nor “evidence” is defined in the Act, for the purposes of the Act.
59. The question is whether it was open to the Tribunal, in the circumstances, to find that the applicant was “not a credible witness”. I understand that this part of the Minister’s submissions seeks to create, at least, a background to argue that what the applicant provided in her application for a protection visa was, on a plain English reading, “evidence”, with penalties attaching to it if it was “false or misleading”. That, presumably, in part, provides the basis for the applicant to be described as a “witness” because she has provided “evidence” in her application, which the Tribunal had difficulties in accepting, and therefore enabled it to find that she was “not a credible witness”.
60. There are a number of difficulties with the Minister’s submissions.
61. First, even on an ordinary, rather than a technical, reading of “evidence” at CB 17, what is set out there does not support the proposition that what the applicant actually, and subsequently, wrote in her application form, in context, under the heading of: “Your reasons for claiming to be a refugee”, was “evidence”.
62. That part of the form (at CB 17 to CB 20) asks the applicant to set out her reasons for claiming to be a refugee. The direction is clearly that what the applicant is to provide is: “The reasons you give in this section should be your reasons only.”
63. That is, this part of the form is seeking that the applicant set out her own claims to be a refugee. The reference to: “You should provide any evidence that you have which supports your claims” clearly distinguishes what the applicant subsequently writes as being the “claims” to be a refugee, and not “evidence”. On a plain reading, the “evidence” is to be otherwise provided in support of her claims.
64. Further, the references to the two declarations made by the applicant relied on by the Minister now, do not refer to “evidence”. They refer to “information”. An affirmation that she will not wilfully make misleading statements in providing this information does not, in my view, on its own, convert the applicant’s information or statements into “evidence”.
65. The Minister may be on stronger ground if a plain English meaning of “evidence” is applied. But the relevant definitions are not conclusive. The Macquarie Dictionary (Revised Third Edition) defines “evidence” as:
    • “1. ground for belief; that which tends to prove or disprove something; proof. 2. something that makes evident; an indication or sign. 3. Law the data, in the form of testimony of witnesses, or of documents or other objects (such as a photograph, a revolver, etc.) identified by witnesses, offered to the court of jury in proof of the facts at issue ... 4. to make evident or clear; show clearly; manifest. 5. to support by evidence ...”
66. “Witness” is defined as:
    • “... 1. to see or know by personal presence and perception. 2. to be present at (an occurrence) as a formal witness or otherwise. 3. to bear witness to; testify to; give or afford evidence of. 4. to attest by one’s signature. 5. to be the scene of. ... 6. (sometimes followed by to) to bear witness; testify; give or afford evidence ... 7. one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. 8. a person or thing that affords evidence. 9. one who gives testimony, as in a court of law. 10. one who signs a document in attestation of the genuineness of its execution. 11. a. testimony or evidence: to bear witness to the truth of a statement. b. a public support or affirmation, usually of a religion, by word, deed or the example of a lifestyle ...”
67. The definitions are not conclusive in assisting in the current case. For example, what the applicant claimed in the protection visa application may be a “ground for relief”, but it is not “proof”. What the applicant said had occurred in India as part of her claims, may be matters that she knows by “personal presence and perception,” but it cannot be said to amount to making her a “formal witness” or that she has “testified” by way of oath or affirmation as otherwise provided in the Act. (See further below.) It may, however, be caught by making a “solemn declaration”. (See “testify” – Macquarie Dictionary.)
68. The Minister also submits that assistance may be obtained by having regard to the relevant statutory scheme setting out the code of procedure for dealing with applications before the Minister.
69. This code is relevantly found, in part, in Subdivision AB of Division 3 of Part 2 of the Act – the code of procedure for dealing fairly, efficiently, and quickly with visa applications:
    1. Section 51A provides that this subdivision is an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with.
    2. Section 54 provides that the Minister must have regard to all of the information in the application.
    3. Sections 55 to 58 deal with the provision and obtaining of information by the Minster.
    4. Section 59 provides that an applicant must make every reasonable effort to attend an interview.
70. I note that all of these sections refer to “information”, not “evidence” given by a “witness”.
71. The Minister also submits that in the current case the applicant attended an interview by telephone.
72. Further, that s.91V, dealing with the verification of information (a part of Subdivision AI to AL of Division 3 of Part 2, dealing with protection visas) provides, amongst other things, that pursuant to s.91V(8), the Minister or an officer may administer an oath or affirmation for the purposes of that section – relevantly for the purpose of requesting an oath or affirmation of the applicant that the “information” provided is true.
73. I understand this submission to infer that the giving of “information” under oath or affirmation is akin to the giving of “evidence” by a “witness”.
74. The Minister makes reference to the “draft” record of the interview conducted by the delegate of the applicant. (See CB 30 to CB 31.). In particular:
    • “A/n was advised that it was against immigration law to provide false or misleading information to an officer. A/n said she understood and said she will tell the truth.”

[I note also just below this: “I advised a/n that interpreter is bound by strict code of ethics not to tell anyone anything that is said. A/n said she did not know the interpreter and had no objection to him.”]

75. The Minister’s submission is that the applicant was told of the importance of telling the truth, and she said that she would do so. The clear implication in this submission being that, on a plain language reading, rather than a more technical meaning, of the term “evidence”, what the applicant then told the delegate could, in that sense, be said to be “evidence” such that the applicant could subsequently be described as a “witness” – credible or otherwise.
76. There are some difficulties with this submission.
77. First, to the extent that the Minister refers to s.91V and, in particular, s.91V(8), there is no evidence before the Court that the delegate administered an oath or an affirmation to the applicant at the time of the interview. The delegate’s decision record, despite being “over stamped” as “draft”, is comprehensive. Given what is set out at the third paragraph (at [74] of this Judgment extracted above) it is open to draw a strong inference that no oath or affirmation was administered to the applicant.
78. Second, being “aware” of the importance of telling the truth, while clearly a relevant element, does not in my view, equate to giving “evidence”. To the extent that the Minister relies on s.234 of the Act for this purpose, I note that that section is said to deal with: “False papers etc.” While s.234(1)(b) refers to “false or misleading” statements, in my view, this is, in context, in connection to the provision of documents, not separately, the giving of “evidence”, or even “information”.
79. Third, when proper regard is had to the whole of the relevant scheme of the Act, a clear distinction can be drawn between the delegate conducting an interview, where no oath or affirmation is taken, and one where it is. That distinction is clear, given that the use of s.91V(8) is discretionary.
80. Further, there is a clear distinction between a provision compelling reasonable efforts by an applicant to attend an interview before the delegate (s.59), and the obligation on the Tribunal to invite an applicant to a hearing to “give evidence ...” (s.425 of the Act). Section 59 is significantly silent in this regard, such that if the giving of “evidence” pursuant to s.425 before the Tribunal can be said to then make the giver of that “evidence” a “witness”, then the omission of any such reference in s.59 implies that whatever the applicant does in attending the interview, it is not for the purpose of giving “evidence”, and not as a “witness”.
81. This distinction is seen further with other provisions relevant to the conduct of the review before the Tribunal, as opposed to the consideration of an application before the delegate.
82. For example, the distinction between a hearing to give “evidence”, and the provision of “information” can also be seen with reference to s.424B when compared with s.425. The Tribunal has discretion, where an invitation has been given pursuant to s.424 or s.424A to provide information or to comment on information, to specify that the way of giving the information or comments may be (amongst other ways) at an “interview”. The Act here plainly distinguishes between the giving of “evidence” at a hearing, and the giving of information or comments at an interview.
83. Further, s.426 of the Act provides for the applicant to provide a notice to the Tribunal that he or she wants the Tribunal to obtain oral evidence from a person, or persons, named in the notice. That is, what is said at a hearing is “evidence”, not necessarily the provision of “information” as at an “interview”.
84. The distinction is further evident when regard is had to the powers of the Tribunal as set out in s.427 of the Act.
    1. Section 427(1)(a): “... the Tribunal may: ... take evidence on oath or affirmation ...”
    2. Section 427(3)(a): “... the Tribunal in relation to a review may: ... summon a person to appear before the Tribunal to give evidence ...”
    3. Section 427(3)(c): “... the Tribunal in relation to a review may: ... require a person appearing before the Tribunal to give evidence either to take an oath or affirmation ...”
    4. Section 427(5): “The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.”
85. Even further, s.428(1) emphasises the power of the Tribunal to take evidence on oath or affirmation and that this power may be exercised by someone approved in writing by the Minister to exercise this power on behalf of the Tribunal.
86. In my view, in all, the relevant legislative scheme makes a clear distinction between the applicant appearing before the Tribunal to give “evidence” under oath or affirmation, and the applicant attending an interview with the delegate. The absence of any parallel provisions, as referred to above, in relation to the interview with the delegate, in my view, means that whatever the applicant did at the interview with the delegate, she did not give “evidence” within the scheme of the Act.
87. This is further emphasised with reference to s.59(2): “Section 58 and this section do not mean that the Minister cannot obtain information from an applicant ...”
88. The distinction then is that the applicant appears at a hearing before the Tribunal to give “evidence”, and attends an interview with the delegate to give “information”. This is consistent with the declarations referred to above, and otherwise relied on by the Minister, where the reference is to “information” or “statements”, and not to “evidence”.
89. In submissions the Minister also relies on that part of the delegate’s decision record as follows:
    • “20. The delegate refused to grant the Applicant a protection visa. The delegate’s reasons included, among other things, the following (at CB 40.7):
      • ‘I have considered the applicant’s [claims] and do not consider she faces a real chance of persecution for a Convention reason should she now return to India. In making this assessment, I have some difficulty accepting the applicant’s claims as credible. The applicant’s written claims are extremely brief, and [many] of her response[s] at interview seemed evasive or were unconvincing.’”
90. If the inclusion of this extract in the Minister’s submissions is intended to state, or imply, that the delegate also made an adverse credibility finding against the applicant, then I do not accept this submission, particularly if it is put as the reason that the delegate refused the application.
91. A plain reading of the delegate’s decision reveals that the delegate had difficulty with the applicant’s claims. The delegate said that she had: “difficulty in accepting the applicant’s claims as credible” (CB 40.7).
92. But a plain reading also reveals that the reason for the refusal of the application was that the delegate found that the claims did not genuinely reflect the applicant’s circumstances. The delegate found no Convention nexus to her claims. Further, the delegate allowed for the possibility that the claims may be genuine, in which case, and in any event, the applicant would have adequate protection in India and could safely relocate away from her family (CB 41.7 to CB 42.3).
93. The delegate did not make any finding that the applicant was not a credible witness or person. The delegate expressed “difficulty” with the credibility of some of her claims and properly based this in some of the answers given at the interview. Ultimately, the delegate’s findings were about the applicant’s claims, not about the applicant personally. In my view, this was an important distinction. (This is set out more fully below.)
94. It must be said that the Tribunal may benefit from considering the approach of the delegate, particularly in light of the fact that the delegate at least spoke personally to the applicant. The Tribunal did not.
95. At paragraph 21 of his supplementary submissions the Minister also makes reference to the: “Application for Review” form (CB 43 to CB 46) submitted by the applicant.
96. The Minister submits that: “No new evidence ... was provided with this form.” This is despite the form stating (at CB 45 – see respondent’s supplementary submissions at [21]):

“‘You should provide with this application any information, documents or submissions that you want the Tribunal to consider in support of your application, or send them to us as soon as possible.’”

97. I understood the inference from this submission to be that, at least in part, as no “new evidence” was submitted by the applicant, the Tribunal could proceed to rely on the “evidence” presented to the delegate.
98. This does not assist the Minister’s argument before the Court now for the reasons already set out above. It is of no real assistance in light of what immediately follows.
99. I cannot see that the form calls for the provision of evidence. While it is true that in some circumstances, documents, for example, may be seen as evidence, in a statutory scheme where the word “evidence” is specifically used in particular contexts (as set out above), I cannot accept the submission that no “new evidence” was provided by the applicant, despite being asked by this letter to provide “evidence”.
100. In any event, on the relevant question, what remains is that the applicant, as the Minister agrees, did not provide any “evidence” with the review application form such that the Tribunal could use it as a basis for its finding that the applicant was “not a credible witness”.
101. The Minister also submits that in its letter acknowledging receipt of the application for review (and setting out the process by which the Tribunal was to conduct the review) the Tribunal advised (at CB 48):
     • “‘What does the Tribunal expect me to do?
     • You should:
     • ...
     • immediately send us any documents, information, or other evidence you want the Tribunal to consider.’ (Underline added.)”
102. The Minister submits that while no new information was submitted by the applicant, nor was any “evidence” provided in spite of what was written in the letter.
103. It is difficult to see how this assists the Minister. The very point is that the applicant did not put anything further before the Tribunal, whether “information” or “evidence”, as a result of the acknowledgement letter, or otherwise.
104. If all the Tribunal had before it was the “information” or claims presented to the delegate, and this could be said not to be “evidence”, then was it open to it to find that the applicant “was not a credible witness” when she had given no “evidence” and had only made statements, claims, or given information?
105. The Minister’s submissions are on stronger grounds in two other respects.
106. The first is the submission that the word “evidence”, and for that matter, the word “witness” should not be given technical legal meanings, but should be seen as being used by the Tribunal with reference to their plain and ordinary meaning in the English language.
107. This submission derives support from s.420 of the Act. This provides that in the exercise of its powers, and in the carrying out of its statutory functions (that is, in the exercise of its jurisdiction), the Tribunal: “... is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.” (See s.420(2).) Specifically, “in reviewing a decision” the Tribunal “is not bound by technicalities, legal forms or rules of evidence ...” (s.420(2)).
108. This latter, in effect, probably rules out the Evidence Act 1995 (Cth) as a source of assistance. Although, I note that the definition of “witness”, for the purposes of that Act, is inclusive, rather than exhaustive. (Clause 7 of Part 2 of the Dictionary to that Act “includes: a party giving evidence”.)
109. In relation to s.420(2), in particular, I note what was said in Re Ruddock: Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 per Gummow and Hayne JJ (with whom Gleeson CJ agreed in relation to his matter (at [56])):
     • “However, the rule has no application to proceedings in the tribunal. Section 420(2) of the Act states:
     • The Tribunal, in reviewing a decision:
     • (a) is not bound by technicalities, legal forms or rules of evidence; and
     • (b) must act according to substantial justice and the merits of the case.
     • The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.”
110. If the purpose of s.420(2) is to free the Tribunal from the “constraints” that apply in courts of law, then the Minister’s submissions that the terms under consideration (“witness” and “evidence”) should be given their ordinary usage meaning, rather than any “technical” meaning, has great strength.
111. Further support for this aspect of the Minister’s submission is to be gained, in my view, from what is often said about the nature of the proceedings before the Tribunal. That is, that they are inquisitorial, not adversarial. The Tribunal’s task is not to contradict the case put forward by an applicant, but to properly evaluate the claims, make clear findings of fact, and ultimately (based on these findings) either reach, or not reach, the requisite level of satisfaction as to whether the visa must be granted.
112. I note in particular what was said in this regard in SZMZL v Minister for Immigration and Citizenship [2009] FCA 971 per Graham J (at [5]):
     • “Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; [1999] FCA 719; (1999) 93 FCR 220 (‘Rajalingam’) refer to the ‘civil standard of proof’ being not irrelevant to the process of fact-finding by the Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594; (2001) 114 FCR 212 (‘Kalala’) refer to the Tribunal being obliged to consider matters on ‘a standard less than the balance of probabilities’ (see at [25]). I doubt the utility of addressing matters on which the Tribunal has to be ‘satisfied’ by a standard which is related to the standard of proof required in adversarial civil litigation.”
113. To apply a technical “legal” meaning to “witness” or “evidence” in the Tribunal context, therefore, is to impose a requirement that appears inconsistent with the nature of the proceedings before the Tribunal.
114. The second, in respect of which the Minister’s submissions are on strong ground, is that the Tribunal, in the current case, did write to the applicant and put her on notice that the relevance of the information to which its letter referred was that the Tribunal may: “... conclude that you are not a truthful or credible witness.” (See item 6 at CB 55.3, item 7 at CB 55.6, and item 9 at CB 55.8.)
115. That is, this forms the basis for the Tribunal to subsequently find that the applicant was “not a credible witness”.
116. In this regard, the Minister submitted that by writing to the applicant in this way, and pursuant to s.424A, the Tribunal created the circumstances, with the applicant’s failure to attend the hearing, that the applicant therefore lost any entitlement to a hearing pursuant to s.424C(2) and s.425(2)(c).
117. Again, this does not assist the Minister in the central question currently under consideration. Whether the applicant would have lost any entitlement to a hearing, or did not attend the hearing, is of no real consequence. What remains is that she did not appear at a hearing before the Tribunal to give “evidence” such that she could then potentially be described as a “witness”, credible or not, even giving these terms their plain language meaning.
118. At paragraph 84 of the supplementary submissions the Minister seeks to rely on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) and what was said there in relation to the nature of “information” for the purposes of s.424A of the Act. I understood the implication to be that it was open to the Tribunal to rely on what was said in the protection visa application in reaching the finding that the applicant was “not a credible witness”.
119. I cannot see, however, that this can assist in the resolution of the relevant question. That the Tribunal may rely on “information”, which it has put to the applicant in writing for comment, is not in dispute. The issue is whether the “information” can be said to be such that it founds a finding of “not a credible witness”, as opposed to a finding of a lack of satisfaction derived from that “information”. In this sense, SZBYR does not assist.
120. The Minister also refers to SZFQS v Minister for Immigration [2005] FMCA 715 (“SZFQS” – per Smith FM at [13] to [16]). The submission is that in that case, the applicant also did not attend a hearing. (Further, it appears that in that case, no “s.424A letter” was sent.) Yet on the material before it, the Tribunal found, amongst other matters, that the applicant was “not a credible witness”. (See at [15].) No jurisdictional error was found. (See at [16].)
121. It does not appear that the current issue arose for consideration in that case. Further, unlike the current case, the applicant in SZFQS did provide a “statement” with his application for review. (See at [6].)
122. I did consider a number of other cases of this Court to see if assistance could be obtained.
123. In SZISC v Minister for Immigration & Anor [2007] FMCA 1365 I considered a similar situation where the Tribunal made findings that the applicant was “not a credible witness”, in circumstances where the applicant did not attend a hearing before the Tribunal. I found no jurisdictional error. This was upheld on appeal. (See SZISC v Minister for Immigration and Citizenship [2008] FCA 134.)
124. The current circumstances can be clearly distinguished, however, because in that case, the applicant had appeared at a hearing before the Tribunal as differently constituted and gave evidence. (See SZISC v Minister for Immigration & Anor [2007] FMCA 1365 at [13].) The Tribunal’s subsequent finding that the applicant was “not a credible witness” relied on inconsistencies between the applicant’s written claims and his oral evidence at the hearing.
125. This was similar to what had occurred in SZKEU v Minister for Immigration & Anor [2007] FMCA 1319 per Cameron FM in which there was a “previous hearing”. (See [20]. See also [2] – a “previous Tribunal”.) Further, the applicant appeared at an “interview” with the Tribunal. (See [16].)
126. In SZKNE v Minister for Immigration & Anor [2007] FMCA 1189 (per Driver FM) the Tribunal proceeded pursuant to s.426A. The Court found no jurisdictional error where the Tribunal made “adverse credibility findings”. However, the matter of “not a credible witness” did not assist.
127. The Minister was unable to assist with any authority directly on point.
128. What remains, therefore, is that the applicant in the current case made an application for a protection visa. She made claims in support of this application. At best, what was contained in the application, could be said to be “information”, and not, with reference to the scheme of the Act, “evidence”.
129. She attended an interview with the delegate. However, what she said cannot be relevantly described, with reference to the scheme of the Act, as “evidence” “given at a hearing”.
130. The delegate had concerns, and had difficulty in accepting her claims as being “credible”, but made no finding that she was “not a credible witness” and, at least in part, proceeded to consider the claims as if they were “genuine”.
131. The applicant gave no “information”, or statement, let alone “evidence” to the Tribunal.
132. This Tribunal did not just make a finding that the applicant’s claims were not credible. It found that the applicant was “not a credible witness”. There is a great qualitative difference between the two. The first is a rejection of an applicant’s claims as either being implausible or not believable. The latter is a finding about the applicant herself.
133. The finding states, to put it bluntly, that she is a liar. The word “witness”, whether used in a technical sense, or even in everyday, ordinary language, carries with it something personal about the applicant. It is not just the words that she used in her application, but her word, her personal integrity, that is impugned.
134. The task for the Tribunal is, of course, to evaluate and consider claims made before it and to make findings of fact about those claims. This plainly includes factual findings as to credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405).
135. There is plainly no difficulty in the Tribunal (where an applicant does not attend a hearing) making a finding that the claims before it are such that that it cannot reach the requisite level of satisfaction such that the visa must be granted. Nor is there difficulty, even, in a Tribunal finding that the claims made are not credible in the current circumstances.
136. But I cannot accept that it was open to the Tribunal to make a finding that the applicant was “not a credible witness” in circumstances where the Tribunal had never spoken to, nor met with, the applicant, let alone evaluated and considered her claims, and the presentation of her claims, and evidence at a hearing.
137. This finding, in the current case, is not just a finding about the applicant’s claims, but a finding about the applicant herself, her integrity, and her character. It goes to reputation – an important matter. The Tribunal would be well reminded of how a Tribunal member would feel to be accused of bias, or even the apprehension of bias, without proper foundation, or without a probative basis for making such an allegation.
138. The central importance of a hearing to the procedures to be adopted by the Tribunal is well established. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, for example.) It is one of the central planks of its procedural fairness obligations. It is also of importance in enabling the Tribunal to evaluate what is before it so that it can complete the task that it has been jurisdictionally charged to conduct. While the Act clearly enables the Tribunal, in appropriate circumstances, to proceed to a decision in the absence of a hearing, the issue in the current case is whether, in the circumstances, it was open to the Tribunal to find that the applicant was “not a credible witness”. For the reasons set out above, it was not.
139. However, in spite of this, I cannot find jurisdictional error on the part of the Tribunal.
140. There will not be jurisdictional error where the Tribunal makes findings that are open to be made on the material before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]- [69] per Tamberlin and Nicholson JJ).
141. In my view, the Tribunal’s decision to affirm the delegate’s decision is otherwise supportable by a separate and independent basis to the conclusion that the applicant was “not a credible witness”, and one which is not, on its own, vitiated by jurisdictional error. (See NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [23].)
142. I note what was relevantly said in VEAJ of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 678 (“VEAJ”) , per Gray J (at [55]):
     • “The applicant has established that the Tribunal denied her procedural fairness and failed to comply with its obligations pursuant to s 424A of the Migration Act. Each is a jurisdictional error. Ordinarily, each would lead to an entitlement to the relief which the Court can grant pursuant to s 39B of the Judiciary Act, subject to the exercise of a discretion to refuse such relief. Unfortunately for the applicant, the Tribunal's decision is not affected by those errors, because it is justified by the alternative streams of reasoning, which are not affected by the jurisdictional errors. The applicant has not made out any of the other grounds on which she challenged the conclusions on which the Tribunal based its decision, and on which its decision can stand independently of the aspects of its reasoning flawed by jurisdictional error. No question arises of the exercise of the discretion to refuse relief of the kinds available under s 39B of the Judiciary Act. If it were necessary to exercise the discretion, I should have exercised it against the grant of relief, principally on the ground that the Tribunal’s decision is justified by its reasoning apart from its reliance on the ‘independent information’.”
143. In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J (at [33), the Court held that if the Tribunal’s decision was sustained or impugned by a number of independent bases for the decision, then there is no jurisdictional error if at least one of them is free of such a taint.
144. (In this regard, see also: SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306, MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1, MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167, SZEVE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 390.)
145. In the current case, on at least a fair reading of the Tribunal’s decision, there were two independent bases for the decision. That is (with reference to VEAJ), there was an “alternative stream of reasoning” which was “not affected by the jurisdictional errors.”
146. The Tribunal found the applicant “not to be a credible witness” and rejected the applicant’s claim on this basis. (See [40], [41], and [43] of the decision record.)
147. But on a fair reading, it can be said that a separate stream of reasoning is the inability of the Tribunal to be satisfied that the applicant was a person to whom Australia owed protection because of the “lack of detail” in the applicant’s claims, the “significant omissions”, the “misinformation”, and the “contradictions” in the “information” contained in the protection visa application, and the “information” provided to the Department at the interview. (See [38] of the decision record.)
148. Importantly, in relation to each of the applicant’s five relevant factual claims as to what she said had occurred in India, and what she feared on return, three were rejected because the applicant was found to be “not a credible witness”. All five, however, were additionally, and on a fair reading, separately, rejected because of the lack of detail and the inability to discuss the claim at the hearing because the applicant did not attend.
149. The applicant claimed:
     1. To be a member of “Sacha Sauda”. The Tribunal rejected this claim because of the lack of detail, and in circumstances where the applicant did not attend the hearing to provide detail “and any other information” ([39] at CB 36).
     2. To have been harassed, threatened, and assaulted by the public and police. The Tribunal rejected this claim because of the finding that she was “not a credible witness”, but also because “the Tribunal was not able to discuss this claim” and could not “obtain details” at a hearing ([40] at CB 76).
     3. That the majority of people do not believe in her Guru and that she feared harm from these people. The Tribunal rejected this claim because she was “not a credible witness”, but also because she had “provided no information to support this claim” and “as the Tribunal was not able to discuss this claim with the applicant at a hearing ...” ([41] at CB 77).
     4. That the government of the Punjab was against her Guru and Sacha Sauda and did not protect their followers. The Tribunal did not accept this claim as she “provide no information to support” it, and it was “not able to discuss the claim with the applicant at a hearing ...” ([42] at CB 76).
     5. She feared the “public” and the police and would be denied protection by the authorities if she were to return to India. The Tribunal rejected this because she was “not a credible witness”, but also because she did “not give any details” or “provide any other information to support the claim”, and “the Tribunal was not able to discuss this claim with the applicant at a hearing ...” ([43] at CB 77).
150. The relief that the applicant seeks in the current case is discretionary. Even if it had been necessary to exercise the discretion, I would not have done so in favour of the applicant.
151. The applicant made claims to fear persecutory harm in India. The delegate found (amongst other things) these claims to be lacking in detail and particularity.
152. The Tribunal gave the applicant at least two separate opportunities to provide detail, particulars and information to support, explain, enlarge on, and enhance her claims. (The Tribunal’s letter of 27 January 2009 to her, and the invitation to the hearing.) Without explanation, or even any response, the applicant chose not to take up those opportunities. The “inevitable consequence” (to borrow the phrase from NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]) was that the Tribunal could not reach the requisite level of satisfaction such that the visa must be granted.

Conclusion

153. In any event, for the reasons set out above, I cannot discern jurisdictional error in the Tribunal’s decision, either by way of the grounds of the application, the applicant’s submissions to the Court, or otherwise. I therefore dismiss the application.

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 23 September 2009