Appeal to this Court
15 On 18 August 2009, the appellant lodged his Notice of Appeal in this Court. The appellant does not pursue any of the grounds of review in his application to the Federal Magistrates Court in this appeal. Rather, the appellant pleads the following new ground:
The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
Particular:
i. it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here".
16 The appellant has not filed any written submissions or provided any further particulars to support this ground of appeal. In oral submissions at the hearing the appellant said he had recently requested documents from India to verify his claims. He said the Tribunal had indicated he could provide further documents but needed to do so within seven days. He was not in a position to comply. There is, however, no reference to this in the Tribunal's decision record. The appellant made a request for time to file documents before the Federal Magistrate who pointed out, at [84], that the time do so was before the Tribunal. There is, and has been, no ground of review or appeal to date that the appellant has been denied due process in this regard.
17 In my view, the sole ground of appeal is without substance and should be rejected. The Tribunal was required to be "satisfied" that a Convention‑based reason, supported the appellant's claim to refugee status. It was not so satisfied. This is not a case where the Tribunal expressed doubt in its decision‑making. The Tribunal found that "the applicant is not a witness of truth, and that his refugee claims are completely unreliable":[75]. The Tribunal disbelieved the appellant, finding that he was not a credible witness and rejecting his factual claims out of hand.
18 It is generally understood that the primary decision‑maker in considering an application such as that made by the appellant, and the Tribunal on an administrative review application, is not obliged to consider whether the applicant has discharged some onus of proof: Yao‑Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275. Rather it is for the applicant to provide evidence and argument sufficient to enable the decision‑maker to establish the relevant facts: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61. The decision‑maker is not required to make out the applicant's case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. There is then no obligation, or onus that governs the Tribunal's decision‑making such that it may only make findings where it has no doubt, or that it must give the applicant "the benefit of the doubt" when making findings. In some situations, however, as in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, an applicant may be entitled to the benefit of the doubt, for example, where they are generally credible but unable to substantiate all of their claims. The question of "doubt" may also be considered relevant in some other decision‑making contexts, as discussed in Minister for Immigration and Indigenous Affairs v Rajalingam (1999) 93 FCR 220.
19 In Rajalingam, at [67], Sackville J explained, by reference to such cases as Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the circumstances in which the Tribunal might need to take account of doubt, in the following terms:
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
20 Kenny J at [139] - [140] put the obligation borne by the Tribunal as follows:
[139]Even if the RRT is satisfied that the claimed past events relied on by an applicant did not occur and is untroubled by any uncertainty on that score, the applicant's claim does not necessarily fail. There remains for consideration any other basis upon which it is said that his or her fear of persecution is well founded: Abebe [Abebe v Commonwealth (1999) 73 ALJR 584; 162 ALR 1; 197 CLR 510] at [193] per Gummow and Hayne JJ.
[140]There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question "What if I am wrong?" after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution. Indeed, I doubt that Kirby J intended to be understood as requiring that: see Wu Shan Liang at 293. In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.
21 In follows that this is not a case where the Tribunal was required to ask itself a question along the lines of, "What if I am wrong?", if indeed such a question ever be appropriate. The Tribunal had no 'real doubt' that its findings were correct. It was not obliged to consider whether those findings might be wrong.
22 On the material before it, the Tribunal was entitled to make the determination it did. The findings were made on credibility grounds. The reasons of the Tribunal do not admit of doubt. The Tribunal considered all the material evidence and were satisfied a Convention based reason was not made out. The reasons of the Federal Magistrate in holding that the decision of the Tribunal was not attended by jurisdictional error are, in these circumstances, unassailable.
23 Finally I note that the appellant says he has recently requested further documentary evidence from India to support his claims. In the event he obtains such material, he may under the Act be able to seek, in effect, a reconsideration of his case. The Minister's solicitor on the appeal indicated to the Court that he would write to the applicant subsequent to this hearing to explain the applicant's statutory options in this regard.