Whether the applicant has a reasonably arguable prospect of success on the substantive application?
20 In his notice of appeal filed 11 June 2019, the appellant relied on 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.
21 Further, the appellant sought the following orders:
1. To set aside the judgement of the Federal Judge Egan dated 28 May 2019.
2. To remit the matter to the Refugee Review Tribunal to determine according to law.
3. An order of cost. And any further orders that this honourable court may deem appropriate.
22 I note that the appellant was provided with the opportunity to file submissions in relation to his appeal but did not do so. In light of the unparticularised grounds of appeal, and in the absence of submissions by the appellant supporting those grounds, it is difficult to see any error in the decision of the primary judge.
23 In submissions filed 14 November 2019, the Minister contended that the "unparticularised template grounds do not demonstrate any appellant error on the part of the primary judge or any jurisdictional error in the Tribunal's decision." The Minister further contended that the grounds of appeal advanced were identical to those in CUK17 v Minister for Home Affairs [2019] FCA 835; EXB18 v Minister for Home Affairs [2019] FCA 833 and AFQ16 v Minister for Home Affairs [2019] FCA 407.
24 The Minister submitted that the appellant required leave of the Court in relation to ground 1 as it was not raised before the primary judge, and the Minister opposed such leave. Further, in relation to each ground of appeal, the Minister submitted:
24 By ground one, the appellant asserts that the primary judge failed to identify that the Tribunal applied s 91R of the Act in a "manifestly unreasonable" manner. However, the appellant has not identified any finding made or reasoning adopted by the Tribunal that could be said to lack an evident and intelligible justification. The first respondent submits that the bare assertions advanced in this ground rise no higher than an invitation for this Court to engage in impermissible merits review.
25 Further and in any event, the Tribunal's decision record demonstrates that it considered the appellant's evidence, engaged in an "active intellectual process" and gave "genuine consideration" to his claims to fear harm, for instance from militant Sunnis groups LEJ and SSP (AB 259-261, [24]-[30]), and because of his status as an Hazara Shia (AB 261-262, [31]-[34]).
26 The first respondent submits that the Tribunal's decision to affirm the delegate's decision was a logical result of its numerous and significant concerns with the appellant's "vague and ill-informed" evidence (AB 260, [27]), the late introduction of new substantive claims (AB 260, [28]) and the lack of corroborating evidence to substantiate his claims (AB 261, [30]) which led to its ultimate conclusion that the appellant was not a truthful or credible witness (AB 261, [35]). The Tribunal was not obliged to accept the appellant's claims uncritically, as it itself noted (AB 258, [19]). The adverse credibility findings made by the Tribunal were based on rational grounds and arrived at upon consideration of matters that were logically probative. In effect, the Tribunal rejected "the entirety of the applicant's material claims on the basis that they were fabricated": AB 262, [37]. Put differently, "the applicant's application failed because he was not believed". There is no unreasonableness to the Tribunal's findings. Leave should accordingly not be granted for the appellant to raise this ground on appeal.
Ground two
27 By this ground, the appellant asserts that the primary judge failed to identify that the Tribunal had no jurisdiction because its "reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act". Again, the appellant has not identified any finding made or reasoning adopted by the Tribunal that could be said to lack an evident and intelligible justification. The first respondent submits that the primary judge was correct to find that the Tribunal's findings were open to it based on the country information before it and the adverse credibility findings that it made: AB 296, [19]-[21]. No appellable error, or indeed any error, is revealed.
Ground three
28 Ground three is a bare assertion of error and goes no further than to invite this Court to form its own view of the Tribunal's decision. Such an approach ought to be firmly rejected. At its highest, the substance of this ground merely cavils with the Tribunal's factual findings and invites impermissible merits review.
29 Accordingly, the grounds of appeal do not establish any appellable error on the part of the primary judge or any jurisdictional error on the part of the Tribunal. This appeal should therefore be dismissed.
(Footnotes omitted.)
25 I do not consider that the unparticularised grounds of appeal in the appellant's notice of appeal would support a finding that the appeal had a reasonable prospect of success.