FEDERAL COURT OF AUSTRALIA

CWY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 86

ORDERS

THE COURT ORDERS THAT:

1.    In so far as necessary, leave be granted to the appellants to rely on the grounds of appeal set out in their notice of appeal as explained at the hearing.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 2 July 2019, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 18 September 2016. The Tribunal had affirmed a decision of a delegate of the respondent Minister not to grant the appellants a Protection (Class XA subclass 866) visa (protection visa). The Federal Circuit Court judgment has the citation CWY16 & Anor v Minister for Immigration & Anor [2019] FCCA 1419.

2    On 26 July 2019 the appellant filed an application for extension of time to appeal and an affidavit in support, and provided the Court with a draft notice of appeal. The effect of the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth), which came into effect on 2 May 2019, is that the draft notice of appeal was filed within time. This is reflected in the Registrar’s order of 15 August 2019 that the draft notice of appeal be treated as instituting an appeal in the proceeding.

Background

3    The first and second appellants are a husband and wife and citizens of the Republic of India. The first appellant is Gujarati and Hindu and speaks, reads and writes Gujarati and reads and writes English. The second appellant is Gujarati and Hindu and speaks only Gujarati. They arrived in Australia on 8 April 2009 as the holders of Class TR subclass 67 visitor visas.

4    The first appellant applied for a Protection (Class XA) visa on 14 May 2009, with the second appellant included as a dependant. The Minister’s delegate refused the application on 3 August 2009. The appellants applied unsuccessfully to the Refugee Review Tribunal (as it then was known) for a review of the decision. That Tribunal affirmed the delegate’s decision on 26 November 2009. The appellants then sought judicial review of that decision in the Federal Magistrates Court, but the proceeding was dismissed for non-appearance: SZOBU v Minister for Immigration and Citizenship [2010] FMCA 206. A judge of this Court subsequently dismissed a proceeding in which the appellants sought to appeal from that decision on the basis that leave to appeal was necessary to found the appeal and, if sought, such leave would be refused: SZOBU v Minister for Immigration and Citizenship [2010] FCA 568. The appellants unsuccessfully sought special leave to appeal to the High Court: SZOBU v Minister for Immigration and Citizenship [2011] HCATrans 110.

5    On 26 September 2011 the first appellant unsuccessfully applied for Ministerial intervention, including the second appellant as a dependant in the application.

6    Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, on 14 April 2014 the first appellant submitted a further application for a Protection (Class XA, subclass 866) visa (protection visa) which included the second appellant as a member of the same family unit. He made this application on the basis that he feared for his life and that of his family as a result of threats of violence from a customer of his employer, and for his own life as a result of threats from his employer himself.

7    The delegate refused the application on 23 April 2015, substantially on the basis that the delegate did not consider the first appellant’s claims to be credible or genuine.

8    On 12 May 2015, the first appellant applied to the Refugee Review Tribunal (as it was then) for review of the delegate’s decision, including the second appellant in the application for review.

9    The Tribunal invited the appellants to attend a hearing to give evidence and present arguments in support of their case on 16 October 2015. Due to medical problems, the appellants attended the hearing via videoconference. The appellants provided further information in support of the application on 29 October 2015.

10    On 16 September 2016 the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

11    The Tribunal (by this time known as the Administrative Appeals Tribunal) had before it the appellants’ claims in their application for a protection visa. The Tribunal’s inquiry was confined to whether the requirements of s 36(2)(aa) and (c) of the Migration Act 1958 (Cth) were met, because the appellant’s claims for a protection visa had previously been assessed under s 36(2)(a): see SZGIZ and s 48A of the Act.

12    The appellants claimed to have fled India as they feared persecution. The first appellant claimed that one of his employer’s customers, who is affiliated with the Indian Congress Party, had forged a receipt and threatened to kill the first appellant and his family after he exposed the forgery. The first appellant claimed that his employer did not report the matter to the police out of a wish to avoid further trouble. The first appellant also claimed that on two occasions the customer’s thugs “almost managed to get [him]” and that the customer was seeking revenge against him for his downfall in business and politics. He claimed that since leaving India, people working for that customer went to his home many times, that his children had to relocate to hide, that he feared he would be killed if he returned to India, as the customer had turned to killing people for money, and that he had been told by his previous customers that the customer was looking for him and enquiring after his current address and that of his children. He further claimed the Indian Congress Party had distanced themselves from the customer because of his reputation but were using him in secret for political assassination.

13    In substance the first appellant further claimed that he had worked for his former employer for 25 years. He claimed that in the financial years 2006-2007 and 2008-2009 “income ten years from [the former employer] as a proprietor and his wife had come to notice of fraud”. He claimed that he handed the money from the bank over to his employer but that there was no record of it on the employer’s books. He claimed that his employer “took in writing in the stamp paper RS 100 by force that I took the money of RS 21,00,000”, forced him to sign on the stamp, and threatened to kill him if he told anyone. He further claimed that the police were controlled by mafia and unable to provide 24-hour protection.

14    Before the Tribunal, the first appellant again claimed that the customer of his former employer had forged receipts to generate disputes with the former employer on the basis of lack of receipt of cement, and that the customer forged the first appellant’s signature on those receipts. The first appellant claimed that he uncovered this fraud and brought it to the attention of his employer, who was unable to recover the money. The first appellant further claimed that the customer was Muslim and involved in the Indian Congress Party; that he employed thugs; and that the first appellant was attacked and beaten twice by thugs, once at his work and once near his home where he was struck unconscious and had to have his teeth repaired in August 2008. The first appellant claimed that the customer blamed the first appellant for the damage to his reputation in business circles and wanted revenge, and that he was unable to obtain protection from the state authorities due to being of a lower caste that the customer.

15    The first appellant also claimed that his former employer asked him to be a party to financial fraud, and that he was pressured to falsify tax documents. He also claimed that his former employer demanded that he repay the money, and threatened to prosecute the first appellant and to force him to sell his home and ruin his reputation.

16    The first appellant claimed that there was an attempt to kidnap the appellants’ daughter when she was in college and that there were threatening phone calls to his apartment and to his son. He claimed that his son and daughter were forced to leave their home and stay with his brother.

17    The second appellant claimed that she had received phone calls at her residence threatening her husband and that the state authorities had not accepted their complaint. She claimed that her son and daughter had received threatening phone calls and that her daughter was nearly kidnapped while at college. She further claimed that her son and daughter were required to spend most of their time at her brother-in-law’s house and were escorted home by him. The second appellant further claimed that her son and daughter could not sell the house and had nowhere to relocate. The second appellant also claimed that her husband was dismissed from his employment. This was refuted by the first appellant, who stated that his wife had only heard rumours of the dismissal. In response to the Tribunal’s query as to why they had not discussed the reasons for his employment ending, the first appellant said that they were preparing to leave India for Australia and there was no reason to discuss it.

18    Following the hearing, the appellants submitted further documents in support of their application, including a statement from each of the appellants. The first appellant submitted a statement that his daughter was kidnapped in July 2013; that a police complaint was lodged by the appellants’ sons, one unsuccessful and one successful; and that on that same night his daughter was returned. The appellants also submitted a document purporting to be a reference letter from the former employer stating that the first appellant had voluntarily resigned from his employment, and had received financial remuneration for being a valued employee. The second appellant submitted a statement in which she clarified her testimony to state that she believed her husband resigned from his job willingly.

19    In its decision, the Tribunal accepted that the appellants were citizens of India and that they were members of the same family unit within the meaning of s 36(2) of the Migration Act. The Tribunal then considered the appellants’ claims for protection and stated (at [81]) that it had a number of significant credibility concerns regarding the appellants’ testimony. In particular, the first appellant claimed that he was compelled by his employer to commit tax fraud, that his relationship with his former employer did not end acrimoniously, and that his employer only blamed the tax fraud on him because it was safer to do so while the first appellant was in Australia. The Tribunal noted that the second appellant provided oral evidence that the first appellant was dismissed that was inconsistent with the evidence of the first appellant that he ended the employment on good terms. The Tribunal further noted that the uncertified document submitted by the first appellant as a reference letter from his employer in order to support his evidence appeared to have been altered using correction fluid. The Tribunal found that the letter was falsified and placed no weight on it (at [83]).

20    Further, the Tribunal found that the second appellant’s evidence in this respect was truthful. The Tribunal accordingly placed no weight on the second appellant’s post-hearing submission that her previous oral evidence was mistaken (at [84]).

21    Based on its finding that the letter was falsified, the Tribunal made the following further findings: that the first appellant was not a valued employee at the time of his departure and did not receive remuneration for being one of the best employees; that the first appellant’s claim to have been compelled by his employer to commit tax fraud was not credible; that the first appellant was dismissed from his employment for reasons not disclosed to the Tribunal; and that the first appellant had suffered some reputational damage from being dismissed in the past (at [85]).

22    The Tribunal also considered whether evidence provided by the appellants in relation to the alleged kidnapping of the appellants’ daughter was falsified, including a copy of a police complaint dated 6 July 2013, a handwritten note by the appellants’ daughter, and oral testimony from the appellants that their daughter had experienced threats and harm in the past and that there was an attempted kidnapping of their daughter in 2013 in connection with the threats of the first appellant’s employer’s customer against the appellants. In doing so the Tribunal had regard to DFAT country information stating that the use and manufacture of fraudulent documents, including for immigration purposes, was prevalent in India (at [87]). The Tribunal also had regard to inconsistencies between the oral evidence, which referred to a kidnapping outside the appellants’ residence, and the documentary evidence, which referred to an attempted kidnapping at the appellants’ daughter’s college. The Tribunal found that the appellants had fabricated both the oral and documentary evidence, including the 2013 police complaint (at [88]).

23    The Tribunal considered the appellants’ claim that after the kidnapping or attempted kidnapping, their daughter had spent time at the first appellant’s brother’s residence. The Tribunal noted that the appellants both gave evidence that this residence was located near to their own residence. The Tribunal also noted the evidence of the second appellant that she sought migration advice from friends and neighbours during this time. The Tribunal considered that had a kidnapping or attempted kidnapping of a member of the appellants’ family taken place, it would be reasonable to expect the appellants’ family to have made a significant relocation and to have sought professional migration advice (at [89]). On this basis the Tribunal was not satisfied that the appellants’ children had faced past harm or threats or that they faced a real risk of significant harm (at [90]).

24    The Tribunal considered the copy of a receipt for a dental appointment dated 10 August 2008 provided by the first appellant in support of his claim to have been beaten in August 2008 and suffered broken teeth. The Tribunal noted that the document indicated that the first appellant had root canal surgery, rather than the restoration of broken teeth, and accordingly placed little weight on it. In the context of the Tribunal’s finding that the reference letter from the first appellant’s former employer was fraudulently submitted, the Tribunal found that the first appellant’s claim to have been attacked by the former employer’s customer or anyone else in August 2008 was fabricated (at [91]). Further, in the context of the Tribunal’s adverse credibility findings against the appellants, the Tribunal found that there were no physical attacks on the appellants or threats to the appellants or their family members (at [92]) and no reason to believe that the appellants faced a real risk of significant harm as a consequence of removal from Australia to India (at [93]).

25    The Tribunal also considered the appellants’ delay in departing from India, noting that the first appellant was granted a visa in mid-January 2009 but did not depart for a further 3 months. I interpolate here that I understand the reference to April 2008 at [94] of the Tribunal’s reasons to be a typographical error that should be read as April 2009, the date of the appellants’ arrival in Australia. The Tribunal noted the first appellant’s explanation that he stayed longer because of his responsibilities to his children, and because he was asked to stay on by his employer, who provided him with money for his departure. In the context of having rejected the first appellant’s claim that he parted with his employer on good terms, the Tribunal rejected the appellants’ explanation for the delay of their departure (at [94]).

26    Overall, the Tribunal found that the appellants, and in particular the first appellant, were not credible witnesses and that the evidence had been considerably fabricated. The Tribunal stated that these adverse credibility findings were a matter of central importance to its determination (at [96]). The Tribunal concluded that there was no substantial reason for believing that the appellants would face significant harm as a consequences of being removed from Australia (at [97]). In making this assessment the Tribunal also had regard to the Guidelines on the Assessment of Credibility and the absence of medical reports relating to the mental health of the appellants.

27    The Tribunal also considered whether the first appellant faced a real risk of significant harm as a result of his dismissal by his employer and the resultant damage to his reputation. The Tribunal accepted the first appellant’s evidence that he did not have any outstanding arrest warrants or investigations pending against him in relation to his employment or assistance with tax avoidance. The Tribunal also accepted (at [101]) that the first appellant would have a risk that was more than remote of reputational damage.

28    The Tribunal noted the substantial passage of time since the dismissal. The Tribunal also noted that the appellants owned their own home and that their children had or would soon have tertiary qualifications and therefore a strong position in the labour market in India. It noted the first appellant’s testimony that India’s economy was creating increased opportunities. The Tribunal considered that this strongly indicated that the appellants would not be denied a capacity to subsist in India (at [103]). The Tribunal found that this conclusion was supported by the opportunity for the appellants to remedy any damage to their reputation under both the criminal and civil law of India.

29    The Tribunal found (at [101]) that the appellants did not face a real risk of cruel or inhuman or degrading treatment or punishment by the authorities in connexion with these matters. The Tribunal also found (at [102]-[103]) that the appellants did not face a real risk of harm that amounted to significant harm arising from the first appellant’s diminished reputation. In reaching this conclusion the Tribunal had regard to the Complementary Protection Guidelines, and understood the complementary protection criterion to require an element of intention which was absent in the circumstances of the present case.

30    The Tribunal made a further finding (at [105]) that, having regard to its adverse credibility findings and findings in respect of the documents provided, that the appellants had substantially fabricated their claims to past harm and threats to themselves and their children. Accordingly, the Tribunal found there were no credible grounds for believing that the appellants faced a real risk of significant harm through arbitrary deprivation of life, torture, cruel, inhuman or degrading treatment or punishment, arising from the appellants’ claims to fear harm from a customer of the first appellants’ former employer, the former employer, or their treatment at the hands of the authorities. The Tribunal also found (at [109]-[110]) that the harm claimed by the appellants was restricted to reputational damage, and that this did not rise to the level of significant harm as a necessary and foreseeable consequence of being removed from Australia to anywhere in India. For completeness, the Tribunal also found that there was no suggestion that the appellants would face a real risk of significant harm through the death penalty.

31    Accordingly, the Tribunal found the appellants did not satisfy the criterion set out in s 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding

32    On 6 October 2016, the appellants applied for judicial review of the Tribunal’s decision in the Federal Circuit Court on the following grounds:

1.     The decision of the Tribunal:

(a)     is affected by an error of law; and

(b)     denied the Applicant procedural fairness.

2.     I have made an application for assistance through Victorian legal aid and am waiting for a decision.

This application was dismissed on 2 July 2019.

33    Before the Federal Circuit Court, the first appellant submitted that the documents that he had submitted to the Tribunal were not false and that the Tribunal’s findings in relation to his dentistry records were incorrectly reasoned. The primary judge recorded that he had considered and refused an adjournment application and an application for work rights, both made by the first appellant.

34    The primary judge found that there was no apparent illogicality or unreasonableness in the manner in which the Tribunal had approached its task in assessing credibility (at [44]); and, in the absence of evidence explaining the dental record, there was no apparent illogicality or unreasonableness in the Tribunal’s findings in relation to those records (at [45]). His Honour further found that there was no apparent failure to accord procedural fairness and that no such failure was identified by the first appellant (at [46]).

35    For these reasons, the primary judge held that there was no jurisdictional error apparent in the Tribunal’s decision, and dismissed the application (at [42], [47]).

Appeal to this Court

36    The appellants appealed from the judgment of the Federal Circuit Court. The notice of appeal (see [2] above) raised the following grounds of appeal:

1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. .

2.    The Federal Judge failed to consider that the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

3.    The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

37    As I understand them, the substance of the grounds may be summarised as follows:

•    Ground 1: The primary judge failed to find that the Tribunal’s decision was unreasonable and therefore affected by jurisdictional error;

•    Ground 2: The primary judge failed to find that the Tribunal did not arrive at its satisfaction as to the statutory requirements in accordance with the Migration Act, and the decision was therefore in error.

•    Ground 3 adds nothing to Grounds 1 and 2.

The parties’ submissions

38    The first appellant appeared in person at the hearing of this appeal, assisted by an interpreter. He informed the Court that his wife, the second appellant, preferred to stay at home and wanted him to “talk on her behalf” at the hearing. The second appellant confirmed that this was in fact her position by a letter dated 3 February 2020, which was sent to my Chambers by email.

39    The appellants did not file any written submissions. At the hearing, the first appellant sought an adjournment, substantially on the basis that he had been suffering from mental and physical distress due to his mother’s surgery in India in November 2019. This application was opposed by the Minister and was subsequently abandoned by the first appellant. He also made oral submissions in support of his appeal.

40    In the course of these submissions, it became apparent that the core of the appellants’ case was that the Tribunal was wrong in its finding that the first appellant was involuntarily terminated from his employment, and for that reason the decision was in error. The submissions made by the first appellant were, first, that the evidence that he had provided to the Tribunal was genuine, and that in substance the Tribunal’s finding that it was not genuine showed that it had failed to properly consider the evidence before it. Secondly, the first appellant submitted in substance that, to the extent that the Tribunal had concerns regarding the credibility of his claims, it should have done its “due diligence” in seeking further information. Specifically, the Tribunal should have sought to obtain the original statements made to the police in 2013, which it did not accept were genuine, or a reliable copy of those statements.

41    The Minister filed written submissions on 20 January 2020 (augmented at the hearing) in which the Minister submitted that grounds 1, 2, and 3 were each, in substance, an unparticularised allegation of error of law. The Minister contended that, without particulars, the grounds raised in the notice of appeal were incapable of establishing relevant error. The Minister submitted that the Tribunal was under no obligation to make out the appellants’ case; that the opportunities provided by the Tribunal before and after the hearing to submit documents were sufficient; and that the Tribunal considered the documents provided to it after the hearing, but found that they did not overcome its credibility concerns. The Minister submitted that the Tribunal had not erred in not seeking further documents in circumstances where the appellants would have understood that credibility was in question.

42    The Minister further submitted that, as the appeal grounds were not advanced before the primary judge, the appellants required leave to rely on them on appeal. That leave, the Minister contended, should not be granted.

Consideration

43    The Court may grant leave on appeal to rely on a ground not raised below where it considers it to be expedient and in the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48]. The Minister accepted in argument that although the way the appellants’ grounds were framed was new, the core factual assertions within these grounds, as explained in the first appellant’s submissions, had been raised before the primary judge. Put another way, the substance of what the appellants sought to raise on the appeal was not materially different from what they put before the Federal Circuit Court. In these circumstances (and given the Minister did not claim that he would be prejudiced if leave were granted) I would grant the requisite leave to rely on the grounds as advanced by the appellants in so far as it is necessary to do so.

44    For the reasons I am about to state, however, these grounds do not establish jurisdictional error on the Tribunal’s part or appellable error in the judgment of the primary judge.

45    By ground 1, the appellants claimed that the Tribunal’s decision was unreasonable and thereby affected by jurisdictional error. There were no particulars given to support this allegation. Having regard to the first appellant’s submissions at the hearing, however, I understand this ground covered the appellants’ claim that the Tribunal’s failure to seek to obtain the original statements made to the police in 2013 or a reliable copy of those statements was legally unreasonable.

46    At the relevant time, the Tribunal’s function on review was set out in Part 7 of the Migration Act. That Part included s 424, which relevantly provided as follows:

424    Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)     A written invitation under subsection (2) must be given to the person:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

47    It may be accepted that the Tribunal’s function on review is an inquisitorial one and, in conformity with this, s 424 permitted the Tribunal to obtain information that it considered relevant to the making of the decision on review.

48    The question whether and when that function may extend to a duty to make inquiries and/or to obtain further information was considered by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123. In that case, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated (at [25]) that:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

(Citations omitted)

49    The analysis in SZIAI was applied by Nettle J in Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22, where his Honour, agreeing in the result, held that a Ministerial delegate’s failure to make an obvious inquiry, easily performed, constituted in the circumstances a constructive failure to exercise jurisdiction (at [51]). As I stated in Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151, the failure to make such inquiries may also be relevant to a finding of unreasonableness: at [63].

50    It may be noted that in SZIAI, the majority held that it was unnecessary to explore the questions of principle as, on the facts of that case, the futility of such inquiries had already been demonstrated (at [26]). It may also be noted that, as I said in Le, a failure to make inquiries will lead to a finding of legal unreasonableness in “rare and exceptional cases” (at [60]).

51    In the present case, there was nothing to indicate that any further inquiry by the Tribunal for the original statements made to the police in 2013 or reliable copies could have proved useful. Even if the Tribunal had obtained these documents, the inconsistencies identified by the Tribunal would have remained. The particular concern, so far as the Tribunal was concerned, was the fact that the appellants’ oral testimony about the attempted kidnapping of their daughter was inconsistent with the documentary and written evidence. In particular, the police report referred to abduction from the appellants’ Indian residence, but the appellants’ oral evidence was that the abduction was from their daughter’s college. The Tribunal’s conclusion that the Police First Information Report (FIR) was not genuine was a second and separate finding, based on the format of the document itself and on country information as to the prevalence of fraudulent documents in India (at [88]). Even if the Tribunal had been satisfied that the FIR was genuinely a document of the kind it was said to be, this could not have overcome the Tribunal’s “particular concern” about the inconsistency between the appellants’ oral testimony and the written or documentary evidence.

52    Furthermore, it cannot be said that the inquiries that it was said the Tribunal ought to have made were obvious and as easily made as they were in Wei. It may be observed that there were no clearly indicated telephone or email contact details listed on the translated document and, in any event, it cannot be assumed that it would have been a straightforward matter for the Tribunal to obtain a copy of the relevant document or documents from an Indian police station or other Indian authority.

53    Generally, in answer to the first appellant’s submissions at the hearing, it should also be borne in mind that the Tribunal’s finding that the appellants were not to be believed did not depend solely on its view of the FIR. For example, the Tribunal’s finding that the reference letter from the first appellant’s former employer was a falsified reference letter (at [83]) led the Tribunal to disbelieve the first appellant’s account of his relationship with his former employer. The Tribunal would appear to have placed primary emphasis on this finding in reaching an adverse view about the first appellant’s credibility. It was evidently open to the Tribunal to have rejected the first appellant’s account on the basis that it found that the reference letter had been falsified. This said, the Tribunal also made a number of other adverse credibility findings (at [85], [88] and [91]) and, in doing so, it had regard to the documents provided by the appellants, their submissions, and the DFAT country information on fraudulent documentation. These findings were ultimately fatal to the appellants’ case on review.

54    In all the circumstances, it cannot be said that the Tribunal’s failure to seek to obtain the FIR, or the original statements made to the police in 2013 or a reliable copy of those statements, amounted to a constructive failure to exercise jurisdiction.

55    Further, having regard to the Tribunal’s reasons, considered as a whole and in respect of each of its findings, it also cannot be said that the Tribunal’s decision, or decision-making, was unreasonable, unintelligible or irrational, or that the result was so unreasonable that no reasonable decision-maker could have reached it: cf Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [105]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [82]. Rather, the outcome was the result of an intelligible and reasoned process of decision-making by the Tribunal, having regard to the evidence, the submissions and other material to which it properly had regard.

56    I note, so far as it matters, that this first ground of appeal referred to s 91R of the Migration Act. Section 91R, which provided a statutory definition of persecution for the purposes of the application of the Act, was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which commenced on 18 April 2015. I do not consider that that former section (or any other section) of the Migration Act provides a basis on which to support a finding of jurisdictional error in this case on ground of unreasonableness or any other basis. It is relevant to note in this context that the Tribunal had regard to the relevant statutory criterion of real risk of significant harm, including in respect of the claimed threats of violence ([93]), as well as reputational damage ([102]), treatment by the authorities ([101]), physical or mental pain or suffering and the denial of basic socio-economic rights ([104]).

57    Ground 1, as set out in the appellant’s notice of appeal and explained by the first appellant at the hearing, must fail.

58    By ground 2, the appellants claimed that there was an error of law in the Tribunal’s decision, having regard to the statutory framework of the Migration Act. The Tribunal made its decision within this statutory framework and that created by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal was therefore obliged to have regard, amongst other things, to the relevant provisions of the Migration Act: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 at 589.

59    Nothing in the reasons of the Tribunal indicates, however, that it operated outside of this statutory framework. Instead, it appears that the Tribunal had careful regard to the relevant provisions of the Migration Act, the legal standards according to which the appellant’s visa application were to be assessed, and the nature of its task as a decision-maker (at [13]-[19], [72]-[74], [77]-[78], [93], [104], [113]). In performing that task, the finding that the first appellant was not credible was a finding that was open to it in the circumstances and under the statutory scheme.

60    Ground 2 of the appellants’ notice of appeal must also fail and, since ground 3 adds nothing to ground 1 or 2, so too must ground 3.

61    Accordingly, the Tribunal’s reasons do not disclose any jurisdictional error. For the same reasons, there is no appellable error shown in the judgment under appeal.

Disposition

62    For the reasons stated, the appeal should be dismissed, with costs.

Associate:

Dated:    10 February 2020