AIZ15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This appeal must be dismissed as the first appellant has not established that the Federal Circuit Court erred in rejecting his application for review of a decision of the Refugee Review Tribunal (as it was) on 11 March 2015 affirming the decision of the first respondent's delegate not to grant the appellant a Protection (Class XA) visa. The second appellant's case depended on the claims of the first appellant, her husband. All references to the appellant below are to the first appellant. 2 The Tribunal disbelieved the appellant's claims about various events in his country of nationality, India, which the appellant said meant that he feared for his life if he had to return to India. 3 Before the Federal Circuit Court the appellant relied on three grounds of alleged jurisdictional error, each of which was considered and rejected in reasons for judgment AIZ15 and Anor v Minister for Immigration and Anor [2016] FCCA 2122. 4 As to ground 1, the Federal Circuit Court concluded that there was no information which engaged the obligation in s424A(1) of the Migration Act 1958 (Cth) to give clear particulars to the appellant of any information the Tribunal considered would be the reason or part of the reason for affirming the decision under review (see [20] to [23] of the reasons for judgment). 5 As to ground 2, the Federal Circuit Court concluded that there was no obligation on the Tribunal to obtain a translation of a document submitted by the appellant after the hearing given that the appellant had been told he needed to provide translations of documents during the hearing, had provided one such translated document, had been given an extension of time to provide translated documents after the hearing, and only attended the of the Tribunal's Registry on the last day of the extended period with a further untranslated document. The Tribunal, moreover, had informed the appellant that if it made credibility findings against the appellant it may give documents no weigh and did in fact make credibility findings against the appellant. At [38], the Federal Circuit Court said: Here, the relevant circumstances include the fact that the applicant was on notice that he was required to provide translations of documents and was able to do, at least in respect of his father's declaration. Further, the untranslated documents were not independent documents that purported to corroborate an important aspect of the applicant's claims but, rather, a document written by the applicant setting out his own history. As the Tribunal said, the applicant had had many opportunities to present his case. Finally, the translation of the documents is in evidence and, on any view, goes no further than to restate the applicant's case put previously to the Tribunal. The Tribunal considered all the other evidence given by the applicant in support of that case. In light of that, the failure by the Tribunal to have the documents translated cannot be said to have been material to the Tribunal's decision. For those reasons, the Tribunal did not act unreasonably, there was no denial of procedural fairness and the Tribunal did not otherwise fall into jurisdictional error. 6 Having read the translated version of the document which was in evidence before the Federal Circuit Court, I agree. The document repeats the claims the appellant made orally in answer to questions from the Tribunal. In these circumstances, I cannot see that the Tribunal erred by not itself arranging a translation of the documents so that it could consider the further document. The appellant was told he needed to provide translations of documents if he wished the Tribunal to take the documents into account. He was given time to obtain translations. The document submitted repeated the same material which the Tribunal had obtained already from the appellant. In common with the Federal Circuit Court, I am unable to see why the Tribunal's decision to refuse the appellant's review application is legally tainted by the Tribunal not having considered the content of the appellant's untranslated further submission given that the further submission was merely repetitive and introduced no new material over and above that apparent from the hearing. As Robertson J noted in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [112]: As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. 7 The contents of the document which the Tribunal did not consider in the present case had no greater cogency than his oral evidence and added nothing to that material. The mere fact that the same material was in writing did not give it any greater potential weight. 8 As to ground 3, the Federal Circuit Court noted at [42] that the appellant made no submissions supporting the contention that the Tribunal's decision was irrational and illogical. The Federal Circuit Court also at [42] correctly identified that the Tribunal's decision was based on a credit finding against the appellant which was based on logical grounds. I agree. The Tribunal gave detailed reasons as to why it found the appellant's claims ought not to be believed insofar as they suggested a fear of returning to India due to political and other disputes involving the appellant and his family. Those reasons did not involve any irrationality or illogicality of the kind which might attract the label of jurisdictional error. 9 During the hearing of the appeal the appellant made no submissions in support of the two grounds in the notice of appeal, neither of which was raised before the Federal Circuit Court. Those grounds, of manifest unreasonableness and injustice by failure to take into account the full gravity of the appellant's circumstances and the consequence of his claim cannot be sustained. The appellant did submit that the Tribunal should have believed his claims and that it was not open to the Tribunal to reject his claims given that the Tribunal had not contacted his family in India and the Indian government to corroborate his claims. I do not see that the facts of the present case engaged any obligation on the part of the Tribunal to make inquiries to attempt to corroborate the appellant's claims. As in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429, it cannot be concluded that inquiries of the appellant's family in India or the Indian government would have corroborated the appellant's claims. As to the former, the question of whether the appellant's family would be believed would have arisen. As to the latter, it is not apparent what inquiry could have been made. In both respects, it cannot be said that the suggested inquiry was "an obvious inquiry about a critical fact, the existence of which is easily ascertained" (SZIAI at [25]). Nor was there any basis to conclude that "the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error" (SZIAI at [26]). 10 Otherwise, the appellant's submissions repeated his profound desire to remain in Australia and personal despair at the prospect that he and his wife will not be permitted to do so. The appellant also expressed his dismay about the limited scope of an application for review to the Federal Circuit Court and this Court following my explanation to him that the right of review was confined to the question whether the Tribunal had made a lawful decision. These are not matters which can lead to any different result given that the role of this Court on appeal is to decide if the Federal Circuit Court erred in its conclusion that the Tribunal's decision was not affected by jurisdictional error. Having considered the Tribunal's reasons and the reasons of the Federal circuit Court, as well as the oral submissions put during the hearing of the appeal, I am unable to see any legal error by the Tribunal. 11 It follows that the appeal must be dismissed, with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.