FEDERAL COURT OF AUSTRALIA

SZTGR v Minister for Immigration and Border Protection [2014] FCA 1385

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), to affirm the decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Protection (Class XA) visa (the protection visa).

Background

2    The appellant is a Fijian citizen. She entered Australia on 18 May 2012 and applied for the protection visa on 14 June 2012. The basis of her claim for protection is that she is a lesbian who has a well-founded fear of persecution in Fiji because of her sexual orientation.

3    The appellant’s claims concerning her sexuality, her relationships with same-sex partners and, consequently, with her family, and the harassment and discrimination she has suffered because of her sexuality, were set out in a statutory declaration, which the Tribunal referred to as the appellant’s “written claims” or “written statement”. The appellant appeared before the Tribunal on 20 August 2013 and gave oral evidence.

4    The Tribunal rejected the appellant’s claims, substantially on the basis that it was not satisfied of the truth of significant aspects of the appellant’s circumstances in Fiji, as she had claimed them to be. In particular, the Tribunal recorded at [24] of its decision record that it was not satisfied that the appellant:

24.    … has or is perceived to have the sexual orientation she claims to have; is or has ever been in a same sex relationship with a woman or that she has any past or future intention or desire to be in a same sex relationship; is perceived to be a Lesbian in Fiji; has experienced past harm or adverse treatment of any type on the basis of her claimed actual or perceived sexual orientation; faces any risk of any type of harm in Fiji in connection with her claimed sexual orientation; or for any other reason in the reasonably foreseeable future.

5    Earlier, at [10] of its decision record, the Tribunal said:

10.    … having had the opportunity to review all the evidence before it, including having discussed the applicant’s claims with her face-to-face for around three hours when she appeared before the Tribunal on 20 August 2013, the applicant’s evidence impresses the Tribunal as hesitant, vague, changing and inconsistent in so many significant respects that the Tribunal is unable to be satisfied of the truth or credibility of even the most fundamental of her past circumstances in Fiji, such as where she attended high school for four to five years in Fiji and when she last lived with either of her parents. She gave no evidence of having any issue of capacity impacting her ability to recall such information, although she did refer to being young at the time she first left home and when her parents left Fiji, which the Tribunal has taken into account, where relevant, below.

6    At [13], the Tribunal said:

13.    … her oral evidence to the Tribunal reveals multiple and significant changes and inconsistencies, including inconsistencies with her written claims, and as put to her under section 424AA, with oral information she had previously given the department, detailed further below. She was unable to provide any plausible explanations as to the why such inconsistencies and changes arose in her evidence, leaving the Tribunal unable to be satisfied of the truth of significant aspects of her claimed circumstances, including her claimed sexual orientation.

7    Following these observations, the Tribunal systematically went through the appellant’s factual claims and evidence. In doing so, the Tribunal described aspects of the appellant’s evidence, including where:

    there were inconsistencies in the appellant’s oral evidence;

    there were inconsistencies between the appellant’s oral evidence and written claims;

    the appellant changed her evidence, including, on occasion, when the Tribunal pressed her on seeming inconsistencies, and

    the appellant was unable to adequately explain how she could rationalise inconsistencies between her evidence and the materials on which she placed reliance, as mistakes.

8    The Tribunal also described the manner in which the appellant gave her evidence. The Tribunal noted that, in respect of significant matters, the appellant, on occasion, gave her evidence “with great hesitation”, “clear hesitation”, “extreme hesitation” or “inexplicable hesitation and vagueness”.

9    The Tribunal gave detailed consideration to the appellant’s claims and oral evidence about two same-sex relationships she claimed to have had. One relationship was with “Priya”. In respect of that claimed relationship, the Tribunal (at [18]) found:

18.    When asked when and where she met Priya, a woman with whom she claims to have had a same sex relationship, she initially told the Tribunal that Priya was a neighbor who she met when she went for her morning runs in Nadi, as Priya lived not far from the applicant there. When asked what Priya was doing for work or study at the time they were together, which her statutory declaration identifies as being between 2001 and 2003, she responded that they were school friends at Sangam High School in Suva. When asked how they met in Nadi if they were at school together in Suva for the duration of their relationship she changed her evidence, stating that they met in Suva when the applicant went for morning runs, as they lived nearby, and for the duration of their two year relationship Priya was studying with the applicant at Sangam High School in Suva. She offered vaguely that they were together just under 2 years and their relationship ended while they were still in high school as their parents got involved. In addition to her changing evidence regarding where she lived when she and Priya met, as put to the applicant by the Tribunal, her oral evidence to it regarding her claimed relationship with Priya was also inconsistent with her written claims in the following respects: her written claims are that she was involved with Priya between 2001 and 2003, which is after she claims to have finished high school and when she was already living in Nadi; her written statement says “we used to meet at my place sometimes as her mother used to stay home and my parents were mostly out at work”, however her oral evidence to the Tribunal indicates that her father had not been in Fiji since 1996, her mother had not been in Fiji since 1998 or 1999, and she had been renting with friends or on her own in Nadi since 1999 or at the latest, since 2000 when she finished high school; her written statement says that, after her father found out about her relationship with Priya, sometime between 2001 and 2003, he “slapped me and threw me out”, however, again, her oral evidence to the Tribunal was that she had not lived in the same household as her father, and he was not even in Fiji, from around 1996. The Tribunal also put to her similar concerns as to why her aunt would be coming to her home looking for her mother between 2001 and 2003 as claimed in her written statement, if her mother had not been living in Fiji since 1998/9. When asked if she is able to offer any explanation for these seemingly significant inconsistencies, she responded that she is trying to recall the dates and times. The Tribunal noted that its concerns extend beyond dates and times. The only response offered by the applicant at that point was a shrug.

10    Another claimed same-sex relationship was with “Sheena”. In respect of that claimed relationship, the Tribunal found (at [19]-[20]):

19.    The Tribunal also asked the applicant about her claimed same sex relationship with Sheena, with whom, according to her written claims, she was in a relationship with in Fiji from 2009 to 2011. The Tribunal asked the applicant if she and Sheena were still in a relationship when the applicant left Fiji for Australia in May 2012. The applicant responded that: they were not; their relationship ended around one month before the applicant came to Australia; and they have had no contact since then. When asked why the relationship ended she offered that they had just drifted apart.

20.    As put to the applicant under section 424AA, the evidence given by her during her department interview regarding the final stages of her claimed relationship with Sheena differed in significant respects from that offered to the Tribunal. In particular, the Tribunal informed the applicant that, in the audio recording of her department interview, held on 9 October 2012, she informed the department that: when she left Fiji for Australia her relationship with Sheena was “strong” and Sheena intended eventually to come to Australia; their relationship ended around one month after the applicant entered Australia, in around June 2012, when the applicant phoned Sheena in Fiji when it was late at night there and another woman answered her phone. The Tribunal explained that her evidence to the Tribunal regarding how and when her claimed relationship with Sheena ended appears different in significant respects and raises concerns regarding the truth of the claims and evidence made not only regarding her relationship with Sheena, but her claimed circumstances more generally, including her claimed sexual orientation. After being informed of her right to request additional time to respond, and following an adjournment of some 20 minutes in which the applicant had access to her migration agent, the applicant offered that: she did say, during her department interview, that she and Sheena had broken up before she got to Australia; however, because she and Sheena met on 14 February she thought there may be something in it; she and Sheena had spoken before about going somewhere to get married so the applicant phoned Sheena from Australia to talk and when she heard the voice of another woman she knew it was over; even though she told the Tribunal they didn’t have contact after they broke up, she was referring to routine contact and not to the call she made after she came to Australia. However, in the context of the applicant’s evidence overall, including the cumulative and significant credibility concerns identified above, the Tribunal does not consider the applicant’s response to be persuasive or true. The Tribunal is not satisfied that the applicant was in an intimate relationship with a person named Sheena as she claims and has significant doubts about the truth of her claimed sexual orientation.

11    The appellant also claimed to have a same-sex relationship with “Simran”. In respect of that claimed relationship, the Tribunal said (at [21]):

21.    The Tribunal notes that, while the applicant’s evidence regarding her claimed relationship with a woman named Simran was largely consistent with her written claims, her oral evidence impressed the Tribunal as offering little beyond what was set out in her written claims, and in the context of the significant and cumulative concerns identified in the balance of the Tribunal’s considerations, impresses the Tribunal as rehearsed rather than reflecting the applicant’s recollection of her own true past experiences.

12    The appellant also made claims, and gave evidence, about a break-in to her home in October 2011. The Tribunal’s findings in that regard (at [22]) were:

22.    Similarly, her evidence regarding a claimed break in to her home in October 2011 and an attack while she was at a temple in April 2012, while largely consistent with her written claims, offered little detail beyond that set out in her written claims. Her oral evidence to the Tribunal regarding her contact with the police regarding her claimed treatment in Fiji also impressed the Tribunal as vague and changing. For instance, at one point she told the Tribunal that she had only ever sought police assistance on one accession, which was after the claimed break-in at her home in October 2011. However, only minutes later, when the Tribunal noted her written claims at paragraph 17 of her statutory declaration, referring to her telling the police that she was being called nasty names by people sitting on the road side, she offered that that was another occasion on which she had sought police assistance. Again, her evidence impressed the Tribunal as changing in accordance with the concerns being put to her by the Tribunal, rather than being a communication of past realities actually experienced by her.

13    The appellant also made claims to have experienced past discrimination in the workplace on the basis of her sexual orientation. It is not necessary for me to set out the Tribunal’s analysis of those claims, save to note that the Tribunal concluded that the appellant’s evidence seemed “contradictory, speculative and unconvincing”: see at [23].

14    Having rejected the substance of the appellant’s claims concerning her sexual orientation and her risk of any type of harm in Fiji in connection with her claimed sexual orientation (see the findings quoted at [4] above), the Tribunal concluded (at [25]) that it:

25.    … is not satisfied that the applicant faces any harm in Fiji in the reasonably foreseeable future, including a real chance of serious harm for a Convention reason. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason and is not satisfied that she is a refugee under s 36(2)(a).

The application for judicial review

15    Although the appellant’s amended show cause application filed in the Federal Circuit Court on 5 December 2013 contained a number of grounds, the appellant ultimately pressed only one ground, stated as follows:

(1)    The Tribunal made jurisdictional error in that based on the hearing (A) there was no evidence for three of its findings and/or (B) it was unreasonable in making three of its findings shown below:

Particulars

(a)    (CB 138 para. 21) – That the applicant has rehearsed her evidence about her relationship with Simran; and

(b)    (CB 138 para. 21 & 22) That she offered little detail beyond that set out in her written claim in relation to:

(i) Relationship with Simran; and

(ii) Home invasion in October 2011.

16    The Federal Circuit Court rejected that ground, concluding that the appellant had not demonstrated any jurisdictional error in respect of the impugned findings. The primary judge’s reasons may be summarised as follows.

17    First, the impugned findings had to be viewed in the context of “the comprehensive rejection of the applicant’s credibility”. Secondly, the “impugned findings were not a critical step in the Tribunal’s ultimate conclusion” that the appellant was not a credible witness. In this connection, the primary judge found that, when the Tribunal’s decision is read as a whole, the impugned findings “formed only part of the Tribunal’s concerns”, which were amply supported by a large body of evidence. Thirdly, there was evidence to support the impugned findings, namely the appellant’s own oral evidence given to the Tribunal. In this connection, the primary judge noted that the appellant’s contention that there was “no evidence” was, in any event, problematic because there was authority to the effect that such a challenge is not available where the finding is, in substance, a negative one. Fourthly, it would be impermissible merits review for the Federal Circuit Court to engage in its own consideration of the appellant’s oral evidence to form a view about whether it was rehearsed or lacking in detail.

18    With respect to the contention that the impugned findings were unreasonable, the primary judge reasoned that this contention did not, in the present case, translate into jurisdictional error. The impugned findings were open to be made on the evidence and, once again, were not critical steps bearing upon the Tribunal’s required state of satisfaction with respect to the appellant’s claims.

The appeal to this Court

19    The appellant’s notice of appeal contains four grounds. Omitting the particulars provided, those grounds are stated as follows:

(1)    His Honour the learned Judge erred by his reasoning (akin to putting cart before the horse) where he referred to comprehensive rejection of credibility as the reason for the impugned findings whereas the impugned findings were part of the considerations in the assessment of the credibility.

(2)    His Honour the learned Judge erred by holding that the impugned findings were not a critical step to the ultimate conclusion.

(3)    His Honour erred in holding that there was evidence to support the impugned findings.

(4)    His Honour misunderstood the legal issue that was before his Honour.

20    Before considering the appellant’s submissions, it is convenient to make some observations about the nature of the impugned findings.

21    The first impugned finding – that the appellant’s oral evidence regarding her claimed relationship with Simran impressed the Tribunal as rehearsed rather than reflecting the appellant’s recollection of her own true past experiences – is no more than a statement of the Tribunal’s impression of the oral evidence given by the appellant about a particular matter. The second and third impugned findings – that the appellant’s oral evidence regarding her claimed relationship with Simran and the claimed break-in, respectively, offered little detail beyond that set out in the appellant’s written claims – were no more than observations about the extent of the evidence given on those matters by the appellant.

22    These “findings” were of a subsidiary nature and, at their highest, represented no more than intermediate findings on certain aspects of the evidence before the Tribunal. It may be accepted that each finding was part of the Tribunal’s reasoning process. Each finding, together with other findings, can be taken to have played a role in the Tribunal’s implicit rejection that the appellant had a same-sex relationship with Simran or that the break-in occurred, at least in the way that the appellant had claimed it to have occurred. These findings, in their own turn, and taken with other findings, can be taken to have to played a role in the Tribunal’s lack of satisfaction that the appellant had a same-sex relationship or had the sexual orientation she claimed, or experienced past harm or adverse treatment in Fiji on the basis of her claimed actual or perceived sexual orientation. In their own turn, these subsequent findings can be taken to have played a role in the formation of the Tribunal’s conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason should the appellant return to Fiji. But the impugned findings should not be confused with, and should be distinguished from, all other factual findings by the Tribunal leading to the Tribunal’s ultimate conclusion that the appellant is not a person in respect of whom Australia owes protection under s 36(2)(a) of the Migration Act 1958 (Cth). In my view, it cannot be reasonably argued that the impugned findings were “critical” findings in the sense in which it has been held, at least in this Court, that, where a fact is a critical step in a conclusion which has been reached, and there is “no evidence” to support that fact, there may be jurisdictional error: see, for example, Jessup J’s analysis in Australian Postal Corporation v D’Rozario and Others (2014) 222 FCR 303 at [52]-[67], Bromberg J agreeing at [106]-[117].

23    It should also be noted that the impugned findings were made with respect to and, therefore, were plainly based on, the appellant’s oral evidence. Thus, the appellant cannot contend that there was “no evidence” for these findings. In this connection, an allegation of “no evidence” is to be contrasted with an allegation of insufficiency of evidence, the latter allegation plainly relating to the weighing of available evidence.

24    I would also add that the Tribunal’s impression that the appellant’s evidence was rehearsed rather than reflecting the appellant’s recollection of her own true past experiences is not one that is readily susceptible to challenge. The accuracy of such impressions, even if available to be challenged, cannot be communicated simply by reading a transcript of the evidence given. So too with the Tribunal’s finding in relation to the appellant’s overall credibility. Here, of course, the Tribunal gave detailed reasons for its conclusion that it was not satisfied of the truth of significant aspects of the appellant’s claimed circumstances in Fiji, including her claimed sexual orientation.

25    It follows from these observations that, in my view, grounds 2 and 3 of the appeal cannot be sustained and fail at the outset.

26     I turn now to consider the appellant’s first ground of appeal.

27    The first ground of appeal focuses on [20] of the primary judge’s reasons. In that paragraph, the primary judge said that the Tribunal’s reasons concerning its disbelief about the appellant’s alleged relationship with Simran and her claim of a break-in (his Honour said, “home invasion”) in October 2011 must be viewed in the context of the Tribunal’s decision as a whole and, specifically, in the context of “the comprehensive rejection of the appellant’s credibility”. The primary judge reasoned that, when so viewed, the appellant had not demonstrated jurisdictional error in respect of the impugned findings.

28    It is necessary to set out [20] of his Honour’s reasons in full:

20.    Viewed in the context of the Tribunal’s decision as a whole, the Tribunal’s reasons concerning its disbelief about the applicant’s alleged relationship with “Simran” and her claim of a home invasion in October 2011 are less problematic than is claimed by the applicant. While it may appear odd that the Tribunal reasoned that her consistent claims concerning Simran were rehearsed, after finding that her claims about Sheena were inconsistent, and that she had given little detail about the home invasion when many aspects of her claim were highly detailed and were examined by the Tribunal at a hearing of approximately three hours, viewed in the context of the comprehensive rejection of the applicant’s credibility, I am not persuaded that the applicant has demonstrated any jurisdictional error in respect of the two impugned findings. In this regard, I agree with the Minister’s submissions.

29    The appellant submits that, in this part of the primary judge’s reasons, his Honour “put the cart before the horse”. The impugned findings could not be viewed “in the context of the Tribunal’s decision as a whole” or “in the context of the comprehensive rejection of the appellant’s credibility” because, the appellant says, these findings form part of the reasons for the decision as a whole and the Tribunal’s comprehensive rejection of the appellant’s credibility. The appellant submits that the primary judge dealt with the impugned findings as if the Tribunal’s overall credibility finding was the basis for those findings.

30    I do not accept that submission. However, this is not to say that there are no difficulties with the primary judge’s reasoning.

31    To begin with, I do not read [20] of the primary judge’s reasons as stating that the Tribunal’s overall credibility finding was the basis for the impugned findings. However, it is to be remembered that the impugned findings are the three findings specifically identified in the grounds of review that were before the Federal Circuit Court.

32    It is apparent that, in [20] of the primary judge’s reasons, his Honour was addressing the Tribunal’s rejection of the fact that the appellant had a same-sex relationship with Simran and the Tribunal’s rejection of the fact that the appellant was the victim of a break-in, as she had claimed. Thus, when stating in [20] that jurisdictional error had not been established in respect of “the two impugned findings”, the primary judge was addressing the Tribunal’s implicit finding that the appellant was not in a same-sex relationship with Simran and the Tribunal’s implicit finding that the appellant was not the victim of the break-in she had claimed. It was the making of these two findings which, the primary judge said, must be viewed in the context of the comprehensive rejection of the appellant’s credibility.

33    In my respectful view, that was the correct way to view those findings, but they were not the three findings which the appellant had identified in her amended show cause application as the findings under challenge. The three findings identified in the appellant’s amended show cause application were findings anterior to the findings addressed by the primary judge. There is no suggestion in the primary judge’s reasons that, before the Federal Circuit Court, the appellant advanced a case that was not the one identified in the amended show cause application. To that extent, therefore, it seems to me that, in [20], the primary judge misdirected himself and, thereby, erred.

34    That said, in other parts of the reasons, it is clear that the primary judge was directing his attention to the three impugned findings. For example, in [27]-[28], the primary judge said:

27.    The Tribunal considered the applicant's oral evidence and formed the view that her evidence about her relationship with Simran was rehearsed, and that her evidence about her relationship with Simran and a claimed home invasion offered little detail beyond that set out in her written claims. It is well settled that credibility is a factual determination for the Tribunal. In my opinion, those views were open to the Tribunal on the material before it.

28.    For the Court to engage in its own consideration of the applicant's oral evidence and form a view as to whether it was rehearsed or lacking in detail would be to engage in impermissible merits review.

35    It is also clear that, earlier, in [23]-[24], the primary judge was dealing with the finding that the appellant’s claim concerning the break-in offered little detail beyond that set out in the written claims:

23.    I also accept that, with respect to the Tribunal’s finding that the applicant’s evidence offered little detail beyond that set out in her written claims concerning the alleged home invasion, that finding was akin to a finding in the negative. There is authority that the “no evidence” ground is not available where the finding challenged is in substance a negative one. The Minister relies upon the decision of the Federal Court in Sunchen Pty Ltd v Commissioner of Taxation. I accept, however, from the applicant’s submissions, that the legal position concerning the no evidence ground is not as simple as that contended for by the Minister.

24.    It is, however, unnecessary in this case to resolve the dispute on that point of principle because I am persuaded that there was evidence to support the impugned findings by the Tribunal.

36    Notwithstanding my finding that, in [20] of the reasons, the primary judge erred by not addressing the impugned findings, I do not think that that error means that the primary judge was in error in the ultimate conclusion to which he came, namely that the Tribunal’s decision is not affected by jurisdictional error.

37    In my view, a fair reading of the Tribunal’s reasons shows that its concerns about the appellant’s credibility did not stop at the point where it found the appellant’s oral evidence and written claims to be inconsistent. Having noted that the appellant’s evidence regarding her claimed relationship with Simran was consistent with her written claims, albeit offering little beyond what was set out in her written claims, the Tribunal specifically stated (at [21]) that it viewed that claim “in the context of the significant and cumulative concerns identified in the balance of the Tribunal’s considerations”. It was in that context that the Tribunal went on to make the finding – that is, the statement of its impression – that the appellant’s evidence in respect of that claim was “rehearsed rather than reflecting the applicant’s recollection of her own true past experiences”. It is to be noted, in that connection, that the Tribunal had earlier rejected the appellant’s claims to have had same-sex relationships with Priya and Sheena, for the detailed reasons which the Tribunal gave.

38    I can see no jurisdictional error in [21] of the Tribunal’s reasons when dealing with the appellant’s claim to have had a same-sex relationship with Simran.

39    Similarly, having noted that the appellant’s evidence about the claimed break-in was largely consistent with her written claims, although, once again, offering little further detail, the Tribunal went on to consider, as it was entitled to do, the appellant’s evidence concerning police contact on that and other occasions. The Tribunal considered this evidence to be “vague and changing”. This part of the Tribunal’s reasons cannot be reasonably read as standing outside the Tribunal’s statement of its overall assessment of the appellant’s credibility. Once again, I can see no jurisdictional error in that conclusion.

40    In her written submissions, the appellant submits that the Tribunal did not have valid reasons for rejecting “the oral claims that were consistent with the written claims”. The appellant points to the “further evidence” that she provided orally in respect of her claimed relationship with Simran and the break-in. The appellant also raises other arguments as to why the Tribunal should not have rejected these claims.

41    These submissions are, in substance, no more than an invitation to the Court to engage in an evaluation of the evidence before the Tribunal to determine its sufficiency for the conclusions to which the Tribunal came concerning its lack of satisfaction that the appellant had a same-sex relationship with Simran and that the applicant had been the victim of the break-in she had claimed. Plainly, that is not the task of the Court on this appeal. Similarly, as the primary judge recognised, it was not the task of the Federal Circuit Court when undertaking judicial review of the Tribunal’s decision.

42    The appellant’s second ground of appeal is that the primary judge erred in concluding that the impugned findings were not a critical step to the Tribunal’s ultimate conclusion. I have already found that that ground of appeal cannot be sustained.

43    The appellant’s third ground of appeal is that the primary judge erred in holding that there was “no evidence” to support the impugned findings. I have also found that that ground of appeal cannot be sustained.

44    As to that ground, the appellant also submits that a finding that evidence is “rehearsed” cannot be made arbitrarily. The appellant submits that there must be a basis for that finding and that basis is an issue that is “examinable” by the Court.

45    In my view, there is nothing on the face of the Tribunal’s reasons that shows that, in coming to the conclusion that the appellant’s evidence concerning Simran was rehearsed, the Tribunal was acting capriciously, unreasonably, irrationally, illogically or in any other way that would indicate that it failed to properly exercise its functions in a way that could possibly amount to jurisdictional error.

46    The appellant’s fourth ground of appeal is that the primary judge mistook the legal issue that was before him. In that connection, the appellant submits that the primary judge erroneously thought he was being invited to engage in a merits review of the Tribunal’s decision. The appellant submits that, in fact, the primary judge was being asked to consider whether there was evidence before the Tribunal which would enable it to make the impugned findings. This ground is obviously related to the third ground of appeal.

47    In order to consider this ground, it is necessary to set out [24]-[28] of the primary judge’s reasons dealing with the “no evidence” issue:

24.    It is, however, unnecessary in this case to resolve the dispute on that point of principle because I am persuaded that there was evidence to support the impugned findings by the Tribunal.

25.    To establish error on the basis that there was “no evidence“ one must cross a high threshold:

What must be remembered here is that, to make out his “no evidence“ assertion, let alone to show that legal error is revealed, the threshold is set, as stated, at “no evidence“. That is, if there is some evidence (even a “skerrick“) to support the reviewer’s finding, then no legal error is revealed (Shop, Distributive and Allied Employees Association v National Retail Assn (No 2) [2012] FCA 480 at [31] per Tracey J). Even where some subsequent miscalculation may have occurred on the part of the decision maker, that would be an error in a finding of fact which would not lead to jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ).

26.    In my view, the applicant’s case fails to clear this threshold. There was evidence before the Tribunal to support the impugned findings, being the applicant’s oral evidence given at the Tribunal hearing.

27.    The Tribunal considered the applicant’s oral evidence and formed the view that her evidence about her relationship with Simran was rehearsed, and that her evidence about her relationship with Simran and a claimed home invasion offered little detail beyond that set out in her written claims. It is well settled that credibility is a factual determination for the Tribunal. In my opinion, those views were open to the Tribunal on the material before it.

28.    For the court to engage in its own consideration of the applicant’s oral evidence and form a view as to whether it was rehearsed or lacking in detail would be to engage in impermissible merits review.

48    In my view, when these paragraphs of the primary judge’s reasons are considered, it is clear that his Honour did not misdirect himself, as the appellant contends. Having found that there was evidence before the Tribunal relating to the three impugned findings, the primary judge, at [28] of his reasons, simply made the unremarkable observation that it is not for the court to engage in its own evaluation of the appellant’s evidence to form its own view that the evidence was rehearsed or lacking in detail. No error, as alleged, has been established by the appellant.

Disposition

49    For these reasons, each ground of appeal is rejected. The appeal will be dismissed, with costs.

Associate:

Dated:    17 December 2014