BRL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

B THE DECISION OF THE TRIBUNAL 4 Before the Tribunal, the appellant gave evidence about his background, family, education, employment, where he lived in India, his stay in Thailand, his reasons for leaving India and why he feared returning there. Three aspects of the Tribunal's reasons warrant emphasis before turning to consider the ultimate conclusion that was reached by the Tribunal. 5 First, the Tribunal concluded that aspects of the appellant's evidence were "vague, lacking in detail, implausible and unconvincing": [20]. The Tribunal noted that there were "inconsistencies between [the appellant's] evidence to the Department and that given to the Tribunal" and ultimately concluded that the appellant was "not a credible or reliable witness": [20]. In support of this finding, the Tribunal noted the following issues which it was said "raise concerns in relation to the [appellant's] credibility and the veracity of his claims": (1) inconsistent evidence to the Tribunal regarding organisations the appellant claimed he joined and the activities in which he claimed he was involved ([21]-[24]); (2) inconsistent evidence to the Tribunal regarding the problems experienced by the appellant as a Muslim ([25]-[28]); (3) contradictory evidence between that contained in the appellant's passport showing he was not in India in July 2014 and the time he claimed he was attacked by the RSS ([29]-[31]); (4) the appellant's failure to mention at the Tribunal hearing significant claims of harm said to have occurred in 2014 and when the appellant returned to India from Bangkok to visit his family ([32]-[34]); (5) contradictory evidence to the Tribunal regarding the places in which the appellant claimed to have lived while in India ([35]-[37]); (6) inconsistent evidence regarding the appellant's travel overseas ([38]-[39]); (7) the appellant's failure to bring a copy of his passport to the hearing (despite being requested to do so) and evidence in that document (a copy of which had earlier been provided to the Department) showing that the appellant went to France in 2012 at a time he claimed he was being threatened by the RSS, but did not seek asylum in France. The Tribunal raised these matters with the appellant who noted that he did go to France and returned and that he simply left his passport at home, but the Tribunal did not find these responses to be persuasive ([40]-[42]); (8) inconsistent evidence to the Tribunal regarding the appellant's travel and employment: ([43]-[46]); (9) conduct inconsistent with claims the appellant left India in October 2014 for Thailand, when he returned to India voluntarily and lived in the family home ([47]); (10) the delay of two months in the appellant applying for a protection visa in Australia, which was put to the appellant pursuant to s 424AA of Act ([48]-[49]). 6 Secondly, the Tribunal's reasons demonstrate that it discussed relevant country information with the appellant which indicated only a low level of official and societal discrimination against Muslims in the area which he is from: [50]-[51]. The Tribunal also had regard to a Human Rights Watch World Report 2019 (Report) provided by the appellant to the Tribunal, but noted that the appellant had not identified any specific information in that Report that was relevant to his claims: [54]. 7 Thirdly, the Tribunal's reasons indicate that it informed the appellant that his file from the Department contained a certificate under s 438 of the Act in respect of certain documents (s 438 Certificate). The Tribunal informed the appellant that the s 438 Certificate was issued on the basis that it was contrary to the public interest to disclose the relevant information because it related to internal working documents and business affairs. The Tribunal explained the meaning of the certificate to the appellant and the documents to which it referred, and invited the appellant to make any submissions on the validity of the s 438 Certificate. In the light of the decision of this Court in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, the Tribunal found the s 438 Certificate was not valid because it did not identify a reason that could form the basis for a claim of public interest immunity: [52]-[53]. 8 Ultimately, the Tribunal found that "[h]aving considered all the [appellant's] claims and all the evidence … the [appellant] is not a witness of truth" and "he fabricated his material claims for the purpose of obtaining a Protection Visa": [56]. While the Tribunal accepted the appellant's evidence relating to his personal background, the Tribunal did not accept the appellant's evidence regarding his travel overseas and that he worked in Thailand: [57]-[59]. The Tribunal also rejected that the appellant was a member of the organisations he claimed, and that he was or is of adverse interest to the RSS: [60]. Accordingly, the Tribunal concluded that it was "not satisfied that there is a real chance or a real risk that the [appellant] will suffer serious harm or significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future": [61]. Nor was the Tribunal satisfied that the appellant met the criterion for the grant of a protection visa pursuant to the complementary protection provisions: [63]-[65].

C THE PROCEEDING BELOW 9 Three grounds of review and a single particular were advanced below, namely: 1. The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the [Act]. [2.] The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns [sic] to India. 3. The Tribunal constructively failed to exercise its jurisdiction; Particular: The applicant provided independent world report on India to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims. 10 The primary judge rejected each ground of review. 11 In respect of the first and second grounds, the primary judge noted that the "Tribunal's reasons expressly summarise the relevant law in the body of the reasons and set out the statutory provisions including s 36(2A) of the Act". Further, his Honour concluded that having turned its mind to the issue of complementary protection and having considered the appellant's claims individually and cumulatively, it was open to the Tribunal to take into account the adverse credibility findings in refusing the appellant's claims under the complementary protection provisions. His Honour found that there is no basis to find that the Tribunal misconstrued or misapplied s 36(2A) of the Act or otherwise misconstrued the statutory provisions in relation to complementary protection: see J [31]-[32]. 12 In respect of the third ground, the primary judge concluded that the Tribunal's reasons identify that it had regard to the Report provided by the appellant, but found that no specific information in the report was identified as being relevant to the appellant's claims, and instead gave weight to other country information. His Honour found that there was therefore no proper basis to infer that the Tribunal did not consider the Report, and in any event, noted that on the face of the Tribunal's reasons, the Tribunal had a real and meaningful engagement with the appellant's submissions and there was no constructive failure to exercise jurisdiction as alleged: see J [33]-[36].

D THE APPEAL 13 The notice of appeal identifies three grounds of appeal. While orders were made by a Registrar facilitating the filing of written submissions, no such submissions were filed by the appellant. At the hearing, I asked the appellant whether he had reviewed the submissions filed on behalf of the Minister and whether he wished to supplement any of the grounds of appeal orally. The appellant confirmed that he had reviewed the submissions of the Minister and that he did not wish to supplement any of the grounds of appeal orally: see T2.33-43. This means I am to determine the appeal on the basis of my review of the notice of appeal, the record below, and the submissions of the Minister. 14 Notwithstanding the extremely vague way in which the grounds of appeal are articulated, I propose to deal with each of them in turn.

D.1 Ground One 15 The first ground of appeal is in the following terms: 1. The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant [sic] claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed [sic] to observe the obligation amounted to a breach of Statutory Obligation. 16 Putting to one side the question of whether the appellant requires leave to raise this ground of appeal as it was not advanced directly before the primary judge (see Murad v Assistant Minister for Immigration & Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (at 516 [19] per Griffiths and Perry JJ)), I have concluded that it is devoid of merit. 17 While not raised by counsel for the Minister in his submissions, it is apparent that s 91R of the Act had no application to the appellant's claims. Section 91R of the Act was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving Asylum Legacy Caseload) Act 2014 (Cth) (Migration Amendment Act), under sch 5, pt 2, item 12. Notably, sch 5, pt 4, item 28 of the Migration Amendment Act states that the amendments made by pts 2 and 3 of sch 5 apply in relation to an application for a protection visa made after the commencement of that item, being 16 December 2014: see s 2, item 22. The appellant applied for a protection visa on 25 May 2015, and therefore, s 91R of the Act did not apply. This ground of appeal is misconceived and must be rejected. 18 In any event, the Tribunal did not find the appellant had or would suffer persecution, and it is not evident that the Tribunal acted unreasonably in so finding. It is apparent from the Tribunal's reasons that, in making its decision, the Tribunal relied on the evidence and country information available to it, as well as the exchanges with the appellant at the hearing.

D.2 Ground Two 19 The second ground raised in the notice of appeal provides: 2. The [primary judge] failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived [sic] in accordance with the provisions of the [Act]. 20 The Delphic terms of this ground of appeal provide little to no basis to pinpoint any alleged error in the reasoning of the primary judge. Contrary to the terms of this ground, the primary judge did consider and conclude that the Tribunal did not fail to exercise its jurisdiction: J [35]. 21 To the extent it is said as part of this ground of appeal that the Tribunal failed to have regard to the Report provided by the appellant to the Tribunal, this contention must be rejected. As is clear from the Tribunal's reasons (at [53]), the Tribunal did have regard to the Report but, importantly, noted that the appellant had "not identified any specific information in that Report that is relevant to his claims". In any event, the choice of, and weight to be given to, country information (to the extent the Report might be classified as country information) is a matter for the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [11] per Gray, Tamberlin and Lander JJ). 22 For completeness, I note that to the extent this ground of appeal invites the Court to substitute its "reasonable satisfaction" for that of the Tribunal, this would be drifting into the area of impermissible merits review. This ground of appeal fails.

D.3 Ground Three 23 Ground three is in the following terms: 3. The [primary judge] has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 24 Again, this ground is expressed at such a high level of generality that it is difficult to understand the alleged legal and factual errors in the Tribunal's decision which the primary judge is said to have failed to consider. In any event, upon my own unassisted review of the Tribunal's reasons, there does not seem to me to be any obvious, discernible error of the type which could form a foundation for relief.

E Conclusion and Orders 25 It follows from the above that the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.