FEDERAL COURT OF AUSTRALIA

CCW17 v Minister for Immigration and Border Protection [2018] FCA 1543

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant is to pay the first respondent's costs to be assessed, if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: CCW17 v Minister for Immigration and Border Protection [2017] FCCA 2622.

Background

2    The appellant is a citizen of Zimbabwe who arrived in Australia in 2008 as the holder of a student visa and joined his mother who had arrived in Australia in 2004. He was then aged 27. His mother is now an Australian citizen, after initially arriving in Australia to work as a nurse.

3    In October 2012, the appellant was arrested, and subsequently convicted, of serious charges. Those charges included occasioning actual bodily harm, aggravated break and enter and commit a serious indictable offence. He received a prison sentence of 7 years and 2 months.

4    On 19 September 2016 the appellant lodged an application for a protection visa. On 11 January 2017 a delegate refused the application.

5    The appellant applied to the Tribunal for review of the delegate's decision, and on 10 April 2017 the Tribunal affirmed the delegate's decision. That decision is the subject of this appeal.

Protection claims before the Tribunal

6    The appellant had claimed in his protection visa application that he came to Australia to be reunited with his mother and because of unemployment and poverty, but also because he had been a victim of political violence as he was critical of the political regime in Zimbabwe. He said he had been beaten up and verbally abused and that he had received death threats from supporters of the ruling party and that if he were returned to Zimbabwe he would be physically and mentally mistreated, and would not live peacefully anywhere in the country.

7    He claimed before the delegate that he feared persecution from the ruling ZANU-PF party (Zimbabwe African National Union - Patriotic Front). He claimed that he had been subjected to a beating by a number of men in 2005 after he had been critical of the ruling party. He also claimed to have been verbally threatened in the lead up to the 2008 election. He said he had never belonged to any particular political party.

8    When questioned by the Tribunal he said that he feared persecution based on his political beliefs, and that he feared that the government would believe that he was returning to take up arms against it and that he would be ascribed membership of the MDC (Movement for Democratic Change - Tsvangirai), the main opposition party that he said he supported but of which he was not a member. He also said he feared persecution as a result of having committed a crime in Australia and being questioned by the Central Intelligence Organisation (CIO). He admitted he was not a high profile opposition member.

9    The appellant also said that in Australia he had not been involved in any political activities, apart from making a couple of Facebook posts mentioning his support for the opposition party.

Tribunal's decision

Political opinion

10    The Tribunal essentially rejected all of the appellant's claims regarding his fear of harm on return to Zimbabwe as well as his claim that he had been attacked in 2005.

11    The Tribunal noted that the appellant had arrived in Australia as a student in 2008 and remained on a number of visas for several years. He had not lodged a protection visa application until shortly before he was to be released from prison. It was some eight years between his arrival in Australia and his application for a protection visa.

12    The appellant gave a number of explanations for the delay. In particular, he said that he had been in a depressive state but had received some counselling in prison. He said he was young at the time and did not have sufficient insight.

13    The Tribunal noted that the appellant had resided with his mother, a nurse, who was herself aware of the Australian immigration regime, having arrived on a visa and obtained permanent residency and ultimately citizenship. The Tribunal also noted that the appellant had attended various educational institutions (he studied tourism, then laboratory technology, and then intended to study nursing) and that it would have been open to the appellant to see counsellors at those institutions. He also held down various jobs during this time (self-employed DJ, service station attendant, interpreter) and renewed his applications for his student visa.

14    Taking those matter into account, the Tribunal considered the appellant was better placed than most to seek professional help as to how he might remain in Australia. It considered that he was well aware of the need to hold a visa and that it was reasonable to expect that someone in his position who claimed to have been a victim of political violence and genuinely feared returning to Zimbabwe would have sought professional advice as to how that should be done. The Tribunal rejected the appellant's explanation as to why he did not apply for a protection visa for some eight years.

15    As to the incident which the appellant claimed had occurred in 2005, the Tribunal did not accept that this had occurred. The Tribunal noted that after the claimed attack, the appellant had remained in Zimbabwe until 2008 and that the only incident in the meantime was that he was verbally abused or threatened in 2008 in the lead-up to the election. The Tribunal referred to country information that indicated that the period leading up to the 2008 elections was the peak of politically motivated violence in Zimbabwe, and that there were credible reports that CIO agents and informers routinely monitored political and other meetings and that people deemed critical of the government were frequently targeted for harassment, abduction and torture. The Tribunal accepted that one did not need to be a high profile opposition member to be targeted in the lead up to the 2008 elections but did not accept that if the appellant continued to be regarded as an opponent of the government from 2005, he would only have been verbally abused or threatened in the three years before he left the country. The Tribunal considered this indicated that the appellant was not identified by the regime in Zimbabwe as a critic of the ZANU-PF.

16    The Tribunal also noted the appellant's description of the alleged assault in 2005 'reads very much like' the assault as described by the police for which he was imprisoned in Australia.

17    The Tribunal concluded that for those reasons the appellant was not identified as a critic of the ZANU-PF regime and that his delay in applying for a protection visa was relevant to assessing the genuineness of his claim to fear persecution. It said (at [67]):

For the reasons given above, while I accept that [the appellant] has a scar on his hand as he has said, I do not accept that this was caused by him being attacked by men or youths who were supporters of the ZANU-PF regime or intelligence officials of the ZANU-PF regime because he was critical of the Zimbabwe Government as he has said. I do not accept that he was subsequently verbally abused or threatened because he was identified as a critic of the ZANU-PF regime as he has said. I do not accept that, as he has claimed, he genuinely holds a political opinion opposed to the current ruling party or the regime in Zimbabwe or that he has posted comments on Facebook expressing such an opinion while in Australia. I consider that he has invented his claims regarding his political opinion in order to provide a basis for his application for a protection visa.

Knowledge of convictions in Australia

18    The Tribunal did not accept that the appellant would be of interest to the Zimbabwean authorities because of his criminal convictions in Australia.

19    The Tribunal stated (at [68]-[69], references to DFAT being to the Department of Foreign Affairs and Trade):

As I indicated to [the appellant] in the course of the hearing before me, I accept that if he is removed from Australia the authorities in Zimbabwe will become aware that he has been convicted of serious criminal offences in Australia. In their submission forwarded to the Tribunal under cover of an email message dated 31 March 2017 his representatives highlighted a passage from the report of the Australian Department of Foreign Affairs and Trade in relation to Zimbabwe which states that:

'Credible sources have told DFAT that, although Central Intelligence Organisation (CIO) personnel are stationed at the country's major airports, they only take an interest in high profile individuals, including human rights activists, senior opposition party members, and anyone accused of committing a crime overseas. This could include involuntary returnees because of their actions in lodging protection claims overseas, although DFAT is aware of third country returns who have not been subjected to adverse attention by Zimbabwean authorities. DFAT assesses that only high profile involuntary returnees would bear this risk.' [fn: DFAT Country Information Report - Zimbabe, 11 April 2016, paragraph 5.21]

[The appellant's] representatives have argued that because he has been convicted of serious criminal offences in Australia he will [be] a high profile involuntary returnee of the sort referred to in this passage and the CIO will therefore take an interest in him. However, as I put to him in the course of the hearing before me, I consider that, read in context, the reference to 'anyone accused of committing a crime overseas' refers to persons accused of committing crimes against the laws of Zimbabwe. As I noted, the Department speaks of 'human rights activists, senior opposition party members, and anyone accused of committing a crime overseas' and I think that it is clear that the Department was talking in this passage about people who might be perceived as posing some sort of threat to the Government of Zimbabwe. As I indicated, I think that this is why the passage speaks of people 'accused of committing a crime': it is not talking about people who have been convicted of crimes overseas. As I put to [the appellant], there is nothing in the information available to me to suggest that the authorities in Zimbabwe are interested in the fact that people have been convicted of criminal offences overseas and I do not accept on the evidence before me that [the appellant] will be of interest to the CIO or other Zimbabwean Government agencies because of his criminal convictions in Australia if he returns to Zimbabwe. I do not accept that he will be a 'high profile involuntary returnee' as referred to by the Department nor that there is a real chance that he will attract the adverse attention of the Zimbabwean authorities if he returns to Zimbabwe now or in the reasonably foreseeable future.

Other matters relevant to removal claims

20    The appellant submitted he would be of interest to Zimbabwean authorities on the basis that he would be returning from a progressive nation like Australia and would be seen as someone coming back to cause instability. The Tribunal did not accept that the appellant would be of interest to the Zimbabwean authorities because it did not accept he would be regarded as anti-ZANU-PF or pro-MDC as a consequence of returning from a country like Australia. Country information was to the effect that the fact that a person has been studying in a country like Australia will not in the absence of other factors, like prior political activism, lead to the person being regarded as anti-ZANU-PF or pro-MDC. In fact many people associated with the ZANU-PF have sent their children abroad to study.

21    Nor did the Tribunal accept the appellant's claim that there was a real risk that the appellant would be shunned by the community in Zimbabwe due to him being removed involuntarily from Australia. The Tribunal had regard to a letter from the former Zimbabwean Ambassador to Australia, Jacqueline Zwamblia. In the letter, dated 20 July 2016, Ms Zwamblia stated that 'any young man or woman who is deported to Zimbabwe is being sent to their death because they will have no hope and no assistance' and they would be 'shunned by the community and will almost certainly live as outcasts and be seen as better off dead'. The Tribunal accepted that the appellant did not have any close family in Zimbabwe, that the economy has declined and that his employment prospects will be poor. However, the Tribunal did not consider he would be discriminated against in employment or for any other reason, having rejected his claims based on political opinion. The Tribunal did not accept on the evidence before it that there was a real chance he would be shunned by the community, as suggested by the former ambassador. The Tribunal found there was not a real risk that the appellant would be left destitute, taking into account that he is an only child and not least because his mother would still be in a position to continue to support him financially from Australia, as she has in the past.

Not a refugee

22    The Tribunal concluded that it was not satisfied that the appellant was outside of Zimbabwe because of a well-founded fear of persecution as required by the definition in s 5H of the Migration Act 1958 (Cth) (Act).

No substantial grounds for believing real risk will suffer significant harm on removal

23    The Tribunal relied on the same findings of fact as referred to above in coming to the view that on the evidence it did not accept there is a real risk the appellant would suffer significant harm because of any political opinion and did not accept that he would be shunned by the community. It took into account that he would face economic hardship and has no close family in Zimbabwe, but it did not consider there is a real risk he would be left destitute. It did not accept that as a necessary and foreseeable consequence of being removed from Australia to Zimbabwe the appellant would suffer significant harm as defined by s 36(2A) of the Act.

Before the Federal Circuit Court

24    The appellant relied on three grounds of review before the primary judge.

25    First, he contended that the decision of the Tribunal was irrational and unreasonable. Three matters were relied upon:

(a)    the rejection of the evidence as to the cause of the scar on the appellant's hand;

(b)    failure to have regard to the DFAT information as to the relevance of the appellant's criminal conviction to his treatment on return to Zimbabwe; and

(c)    the rejection of the information in the ambassador's letter.

26    As to the first matter, the primary judge said that the Tribunal had provided cogent and logical reasons as to why it did not accept that the scar had occurred in the circumstances claimed by the appellant. As to the DFAT report, the primary judge held that there was nothing in the evidence to suggest the authorities in Zimbabwe are interested in the fact that a person has been convicted of criminal offences overseas and that the interest of authorities in persons accused of committing a crime is clearly different in a material respect from a person who has been convicted of a criminal offence overseas. The primary judge did not identify the 'material respect', but I infer it is short hand for the matters referred to in the detailed assessment of the issue by the Tribunal, a matter to which I will return. As to the third matter, the primary judge stated that it was for the Tribunal to determine the evidence to which it had regard and the weight to be given to it, and it was not obliged to accept the former ambassador's evidence.

27    By the second ground of review, the appellant contended that the Tribunal made adverse findings based on information and breached its statutory obligation under s 424A of the Act. The matters alleged in the appellant's written submissions in the court below to have engaged s 424A in relation to his evidence before the delegate were at [12], [13], [23], [24] and [41] of the decision. At [12] of the Tribunal decision, the Tribunal noted a discussion that the delegate had with the appellant at the interview about certain country information. At [13], the appellant was noted as having said that he had not participated in Zimbabwean political groups or parties, that he had made some comments on Facebook and that he had shut down his Facebook page when he was imprisoned in Australia. The balance of the paragraph details the fears that the appellant articulated at the interview about returning to Zimbabwe. At [23], the Tribunal member discussed some obvious inaccuracies in the appellant's application for the protection visa concerning the date of him travelling to Botswana and his completed level of education and sought clarification about those matters. At [24] the Tribunal discussed some further inaccuracies concerning his study history in Australia. At [41], the Tribunal records the appellant admitting that he was not a high profile opposition member. All of these matters were then alleged to have led to adverse credibility findings at [53], [60], [66] and [70]. The appellant also asserted in the written submissions filed below that the Tribunal took into account evidence from the appellant's mother that she was a nurse and that the appellant had been living with her.

28    At the hearing before the primary judge, when asked to identify what matters the appellant alleged needed to be put to the appellant to comply with s 424A, the appellant's legal representative ultimately identified those matters concerning the appellant's mother's evidence that the appellant's mother was a nurse, that the appellant lived with her and that he was studying during the relevant time. The primary judge concluded that these matters did not amount to information which undermined, negated or rejected the appellant's claims such as to enliven any obligation under s 424A.

29    The third ground advanced in the Federal Circuit Court was that there was a lack of probative evidence to support findings made by the Tribunal that the appellant was in a better position to seek advice than other visa applicants because his mother resides in Australia and is a nurse and familiar with the migration system, and because he had studied in Australia and had been employed here, and because there was an availability of counsellors while he was studying.

30    The primary judge found that the findings as to these matters were open to the Tribunal. The appellant also sought to impugn the Tribunal's findings concerning the DFAT country information report and the letter from the former ambassador, but the complaints were in effect a repeat of the claims made by way of the first ground of review. For similar reasons, the primary judge rejected these complaints.

Grounds of appeal

31    The notice of appeal raises three grounds, each of which essentially repeats the complaints about the Tribunal decision made before the Federal Circuit Court, and in effect asserts that the Federal Circuit Court erred in failing to uphold the appellant's application for review.

Ground 1

32    The first ground is that the Federal Circuit Court erred in finding that the decision of the Tribunal was not illogical, irrational or unreasonable. The appellant refers to the Tribunal's treatment of the same topics as below: the scar on his hand, the DFAT report reference to persons accused of crimes overseas and the letter from the former ambassador.

33    As to the rejection of the appellant's evidence as to the cause of the scar, the appellant relied by analogy on the decision in SZDTZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1392 (Smith FM). That case concerned the application of the real chance test. The Federal Magistrate in that case decided that the Tribunal had applied a 'balance of probabilities' test in assessing whether a bullet had lodged in the review applicant's brain in the claimed circumstances, rather than a 'real chance' test.

34    The principles as to taking into account the possibility that events occurred are well known: MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [95]–[96] (Keane CJ, Perram and Yates JJ); Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [60]-[67] (Sackville J, North J agreeing).

35    In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal's own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

36    The Tribunal in this case concluded that the claimed attack based on political motivation did not occur. It set out its reasons, including that on the appellant's own version, nothing more happened to him from the time of the claimed attack in 2005 up until the elections in 2008 when he claimed to have been verbally threatened, and including the delay in applying for a protection visa.

37    The Tribunal was entitled to have regard to such delay in assessing the genuineness, or at least the depth, of the appellant's alleged fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; (1994) 34 ALR 347 at [11] (Heerey J).

38    In this case, a fair reading of the Tribunal's reasons indicates that the Tribunal had no real doubt as to the correctness of its finding that the 2005 attack as described by the appellant had not occurred.

39    In the face of that finding, the Tribunal's finding that the scar, whilst real, did not occur in the circumstances described by the appellant cannot be said to be illogical, irrational or unreasonable.

40    In relation to the finding concerning the DFAT report, the Tribunal clearly considered the appellant's representative's submissions as to its meaning, but formed a different view. It considered that in context the reference to 'high profile individuals including human rights activists, senior opposition party members, and anyone accused of committing a crime overseas' addressed persons who were perceived as posing a threat to the Government of Zimbabwe, including persons accused of committing crimes against the laws of Zimbabwe. On that basis the Tribunal reasoned that the report was not addressing generally people who have been convicted of crimes overseas. The Tribunal raised such interpretation with the appellant during the hearing before it (Tribunal decision at [46]).

41    The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] (Gray, Tamberlin and Lander JJ); SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652 at [20] (Middleton J). The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, [31] (Brennan CJ, Toohey, McHugh and Gummow  JJ). There is no error of law in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia [1994] HCA 14; (1999) 197 CLR 510 at [137] (Gleeson CJ and McHugh J).

42    As to the complaint about the treatment of the letter from the former Zimbabwean ambassador, this amounts to no more than a complaint that the Tribunal preferred country information provided by DFAT as opposed to country information provided by the appellant. Again, in accordance with the authorities referred to at [41] above, that was a course open to the Tribunal and it is not for this Court to review the merits of its decision. The Tribunal had regard to the letter, but assessed the information provided in it having regard to the appellant's personal circumstances, including its finding that he had a mother in Australia who had supported him in the past and would be in a position to do so in the future. The letter did not purport to address the particular circumstances of the appellant. The Tribunal clearly had regard to difficulties a deportee may face in the context of finding employment, but also had regard to country information to the effect that many people study abroad and such a course does not lead to a conclusion that the appellant would be regarded as a critic of the ZANU-PF for doing so. The Tribunal's reasons disclose that it considered all of the country information available to it and it provided reasons as to why it did not accept the claims in the ambassador's letters, at least insofar as the appellant's own position was concerned. Although the primary judge dealt with the submission about the ambassador's letter in a very general way by subsuming it in his finding that the Tribunal dealt in detail with the reason why the appellant did not meet the refugee or complementary protection criteria, an analysis of the Tribunal's reasons indicates that it had regard to the matters raised by the DFAT report, by the appellant and by the letter as being relevant upon any return to Zimbabwe as a deportee (particularly at [70]-[72] and [74]).

43    I note for completion that the appellant's counsel properly accepted that the ambassador's letter ought not be interpreted as suggesting that returnees faced death on return by the acts of third parties: rather, it purported to express the view that returnees faced a risk of death due to economic and social circumstances.

Ground 2

44    The second ground alleges that the Tribunal did not comply with its statutory obligation under s 424A. The parties were to some extent at odds as to how the matter proceeded before the primary judge. The appellant claims that it relied upon a number of matters set out in its written submissions as filed in the Federal Circuit Court as well as matters raised in oral submissions. The Minister says that only the matters raised in the oral submissions were pressed. The Minister's position accords with the reasons of the primary judge.

45    In short, the written submissions purport to refer to information provided by the appellant at the delegate's interview, whereas the matters raised orally (and also in the written submissions) refer to evidence given by the mother at the hearing before the Tribunal.

46    As to matters before the delegate, the submissions state:

The Tribunal relied upon the oral evidence given by the [appellant] to the primary decision maker. This evidence was adverse to the [appellant] and undermined his case [12] [13] [23] [24] and [41]. The information was relied upon by the Tribunal as a basis of its credibility finding as at [50] [60] [66] [70].

47    Neither the written submissions nor the appellant's counsel's oral submissions elucidated matters any further. The 'information' is not identified. It is not for this Court to speculate as to the precise information to which the appellant refers. If I were to do so, then doing the best I can, the evidence of the appellant referred to at [12] and [13] of the Tribunal's reasons relates to the appellant's claims that people who spoke against the government or voiced dissatisfaction were considered to be a threat and were tortured, abducted and murdered, and that he supported the MDC. Such matters were addressed by the appellant before the Tribunal during the hearing: [17]-[20] and [38]-[41]. On their face, the portions of evidence given before the delegate that are referred to, had his evidence been accepted, would have supported the appellant's claims. The 'information' did not contain in its terms a rejection, denial or undermining of the appellant's claims, the requirement explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) at [17]. Paragraphs [23]-[24] of the Tribunal's reasons record that it asked the appellant about certain travel and study evidence, and the appellant confirmed and clarified the position as to both of those matters. Paragraph [41] of the Tribunal's reasons records that he admitted that, as the delegate had found, he was not a high profile opposition member and he then went on to explain why he still considered himself to be at high risk. In short, the Tribunal put certain matters to him that had been raised before the delegate, and he generally agreed with them and in some cases clarified and provided further information.

48    As to the evidence provided by the appellant's mother (that she was a nurse, that the appellant lived with her and that he was studying during the relevant time), it was apparent from the appellant's counsel's oral submissions that the real complaint was not that the evidence itself was adverse to the appellant, but that inferences were drawn from that evidence by the Tribunal. That was the basis upon which the ground was pursued.

49    The Minister submitted that the evidence given by the mother (and not disputed by the appellant before the Tribunal) was not information that engages s 424A. The Minister referred to SZBYR at [18]:

Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".

does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

(footnote omitted)

50    The Minister submitted that it is important to note the Tribunal's reasoning process. The Tribunal heard evidence from the mother and the appellant. Certain factual matters were established. The Tribunal then drew from those factual matters certain inferences, such as the fact that in the Tribunal's view the appellant was in a better position than some other protection visa applicants because he had the support of a mother, was living with the mother and was studying and working. The Tribunal took into account those various matters in coming to the view that the eight year delay in seeking a protection visa told against the credibility of the appellant's claims that he genuinely held a fear of persecution on a return to Zimbabwe.

51    I accept the Minister's submissions. The reasoning process, applying SZBYR, is not information for the purpose of s 424A, and it was not necessary for the Tribunal to formally disclose its reasoning process as to the mother's evidence to the appellant either at or after the hearing.

Ground 3

52    Ground 3 contends that the primary judge erred in finding that the Tribunal's reasons were supported by logically probative evidence. However, the written submissions on behalf of the appellant reveal that the appellant is actually complaining about inferences drawn by the Tribunal from various factual matters before it.

53    Four matters were identified in the submissions.

54    First, the appellant alleges the Tribunal considered that the appellant was in a better position than other applicants before the Tribunal to seek professional advice on how to stay in Australia.

55    The Tribunal set out (at [44]) the basis for its view and that it had informed the appellant of such basis: the appellant had been living with his mother, his mother was a registered nurse, he had been studying and he had been holding down jobs during the relevant period. Those facts were not disputed. In my view, it was open to the Tribunal to infer from those facts that the appellant was in a better position than many other persons who appear before the Tribunal to access professional help.

56    The second matter identified was the statement by the Tribunal that there were counsellors at the institutions where he was attending to study. Whilst the primary judge did not refer to it, this prospect of counselling at institutions was expressly raised with the appellant before the Tribunal and he did not deny it (in fact, arguably he confirmed it - there is some ambiguity on the drafting - at [28]-[30]). It should also be noted that the appellant gave evidence that he sought counselling including 'in the last five years' (referred to at [29]-[30]). In such circumstances it was open to the Tribunal to draw the relevant inference as to the appellant's capacity to seek counselling at an educational institution.

57    The third matter repeats the complaint as to the construction of the DFAT report adopted by the Tribunal as to references to persons committing crimes overseas. Such complaint is not properly about a lack of probative evidence. Rather, the appellant challenges the interpretation of certain country information and that issue has already been addressed.

58    The fourth matter referred to is a repetition of the complaint that the ambassador's letter was not accepted by the Tribunal but rather it relied on country information identified in the decision. Again, such complaint is not properly about a lack of probative evidence. Rather, certain evidence was preferred over other evidence presented by the appellant. The matter has already been addressed above. The outcome is no different although purportedly put on another basis.

59    The appellant complained that the primary judge did not consider those grounds on the basis contended of an absence of probative evidence, but rather dismissed them on other grounds. As appears from my reasons, I do not consider the review grounds as considered by the primary judge referred to findings made where there was any relevant absence of probative evidence.

Conclusion

60    It follows that I do not consider the conclusions of the primary judge were in error. The grounds of appeal are not made out. I dismiss the appeal with costs.

Associate:

Dated:    15 October 2018