the appeal
15 In their notice of appeal filed on 16 May 2016 the appellants raise three grounds of appeal which are identical to the grounds raised in the court below and considered by the primary judge. The appellants have not filed any written submissions.
16 The first appellant appeared at the hearing on behalf of both appellants. She made the following oral submissions on their behalf:
(1) first, she explained that she did not have a lawyer so she represented herself. Then she submitted that she was not satisfied with the decisions made by the Tribunal and the Federal Circuit Court. She submitted that her story had not been accepted by the Tribunal, but that it was not fabricated and that whatever she said happened to her in Pakistan was the truth. The first appellant does not agree with the Tribunal's decision;
(2) in relation to the second ground of appeal, concerning the psychological evidence, the first appellant submitted that she had been treated by the psychologists and that if she had fabricated her story she could not have been treated for her psychological condition. In summary, she does not understand how the Tribunal could not accept her evidence;
(3) in relation to the third ground, concerning the findings relating to complementary protection, the first appellant submitted that she does not know what that means or whether she and her husband meet the criteria, but the real issue is that they fear for their lives in Pakistan and that they left Pakistan in a hurry because of that fear; and
(4) finally, the first appellant submitted that whatever she told the Tribunal was true and that she seeks another opportunity to prove her credibility before the Tribunal.
17 As I explained to the first appellant, the task of this Court on appeal is to determine whether the judgment of the primary judge is affected by appealable error: see SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. The grounds of appeal raised by the appellants do not allege any error in the judgment of the primary judge. Rather they seek to challenge the decision of the Tribunal in the same way as that decision was challenged in the court below.
18 By ground 1 of the notice of appeal the appellants seek to challenge the Tribunal's rejection of the first appellant's credibility. By that ground and the submissions made by the first appellant on their behalf, the appellants invite this Court to engage in impermissible merits review. As the primary judge held at [13] of his judgment the Tribunal rejected the first appellant's credibility as part of its fact finding integral to its obligation to review the decision of the delegate. The Tribunal's conclusion that the first appellant was not a "credible witness" and that she had "fabricated the entirety of her claims to fear harm in Pakistan" are findings of fact par excellence: see Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal gave reasons for its findings about the first appellant's credibility. Those findings were open to it for the reasons it gave. Neither this Court nor the court below has power to review the merits of the Tribunal's decision. There is no error in the approach of the primary judge in his rejection of this ground. Ground 1 should be rejected.
19 By ground 2 the appellants allege that the Tribunal failed to consider the psychological evidence. This ground cannot, in my opinion, succeed. It is plain that the Tribunal had regard to that evidence. It referred to and summarised that evidence at [13]-[14], [17]-[19] of its decision record. As pointed out by the primary judge the Tribunal considered that evidence at [31] of its decision record where it found:
In reaching the above conclusions, the Tribunal has had regard to the psychological reports and medical reports in relation to the applicant. The Tribunal has accepted that the applicant has suffered a traumatic experience through the loss of her first child, and a subsequent miscarriage. The Tribunal does not accept these experiences have affected the applicant's ability to provide evidence or that the loss of her child and miscarriage occurred because of the reasons she has claimed. The Tribunal accepts that the applicant has seen psychologists in Australia and has sought and received counselling. The Tribunal does not accept that it was because she was attacked or assaulted or sought by [the politician's son] and his associates. The Tribunal does not accept that the psychologists have any personal knowledge of the applicant's circumstances in Pakistan and considers that their reports are based only on what has been told to them by the applicant. The Tribunal does not accept that the reports by the medical practitioner or the psychologists and counsellors overcome the problematic nature of the applicant's own evidence. Nor is the Tribunal satisfied that they establish that the applicant's claims are truthful. The Tribunal considers that the applicant has fabricated the entirety of her claims to fear harm in Pakistan.
20 There was no failure to consider the psychological evidence as alleged. The Tribunal accepted that the first appellant had suffered a traumatic experience but the Tribunal found that those reports were based only on what the first appellant had told the psychologists and did not overcome the problematic nature of her own evidence. The Tribunal did not accept that the first appellant's traumatic experiences affected her ability to provide evidence, findings which, as submitted by the Minister, were open to the Tribunal based on the evidence before it.
21 While not raised by ground 2 of the notice of appeal and thus not addressed by the primary judge, for the sake of completeness, the Minister submitted that the evidence that was before the Tribunal did not demonstrate that the traumatic experiences rendered the first appellant "entirely unfit" to give evidence, present arguments and answer questions at the Tribunal hearing. The Minister submitted that the first appellant could not be said to have been denied a "real and meaningful" opportunity to participate in the Tribunal hearing. The Minister relied on Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 (SZNVW) and Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]. I accept the Minister's submission. The Tribunal did not accept that the experiences recounted in the reports provided to it affected the first appellant's ability to give evidence. As in SZNVW there was no evidence before the Tribunal that the first appellant was unfit to give evidence. That was not the effect of the reports relied on by the Tribunal
22 There is no error in the approach of the primary judge in rejecting this ground as raised before him. Ground 2 should be rejected.
23 By ground 3 the appellants contend that the Tribunal did not consider their claims "under complementary protection" and that the reasoning for its protection finding is circular. At [33] of its decision record the Tribunal said:
For the same reasons as those set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence the applicants being removed from Australia to Pakistan that there is a real risk that the applicants will suffer significant harm which includes arbitrary depravation of life, the death penalty, torture, cruel or inhumane treatment or degrading treatment and punishment.
24 There is no jurisdictional error in the Tribunal referring to previous findings of fact in considering the complementary protection criterion. In SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32] a Full Court of this Court (Robertson, Griffiths and Perry JJ) held that:
… However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.
See also SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56]-[57] per Robertson J.
25 The primary judge rejected this ground for the same reason. There is no error in the approach of the primary judge. Ground 3 is not made out.