4.3.2.2 Grounds 2 and 3, draft notice of appeal
30 It is not clear, as the Minister submits, whether in grounds 2 and 3 of the proposed notice of appeal, the applicant's complaint is that the Tribunal or the Court below failed to consider her claims to fear persecution by reason of her religion if returned to Nepal from the Nepalese authorities and her ex-husband's family. However I have read the ground favourably to the applicant as a complaint that the Court below erred in failing to find that the Tribunal failed to consider these claims.
31 The applicant's oral submissions essentially reiterated her claims before the Tribunal, as did her supplementary written submissions. However, as I explained at the hearing, neither this Court nor the Federal Circuit Court has jurisdiction to decide whether the criteria for the grant of a protection visa are met. The jurisdiction of the Federal Circuit Court is limited to a consideration only of the lawfulness of the Tribunal's decision, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Such an error may be established, for example, by a failure to consider one of the applicant's claims or by a breach of procedural fairness (including a statutory rule of procedural fairness). However, the jurisdiction of the Court below did not extend beyond jurisdictional error, the Tribunal's decision being a "migration decision" as defined in s 5 of the Act. As such, in contrast to the powers vested in the Tribunal, the Court below does not have power to grant the applicant a visa or to require that a visa be granted. Nor does that Court otherwise have jurisdiction to undertake a review of the merits of the Tribunal's decision to refuse to grant the applicant a protection visa.
32 The jurisdiction of the Federal Court, in turn, on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is in the nature of a rehearing. This Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant's claims.
33 Notwithstanding the oral submissions, the proposed grounds of appeal allege jurisdictional error in alleging a failure by the Tribunal to consider the applicant's claims. However, as I explained in summarising the Tribunal's decision at [12] to [16] above, it is apparent that the Tribunal's reasons demonstrate that it did, in fact, assess all of the applicant's claims to fear persecution and/or harm, as it was required in law to do, and made findings rejecting those claims on the evidence before it. As the primary judge held at [46]-[47] of her Honour's reasons with respect to the fifth ground of the application for judicial review, the Tribunal found that the applicant was not a genuine Christian and rejected the applicant's claims to fear harm in Nepal for any reason. Matters of credit are quintessentially matters of fact for the Tribunal to determine: Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365 at 393 [124] (Goldberg J).
34 Finally, the Tribunal's finding that the applicant was not a genuine Christian did not permit of any real doubt. As such, I can see no error in the primary judge's finding that the Tribunal was not required to consider the position of Christians in Nepal generally on the assumption that it may be wrong to reject her claim to be a Christian. In other words, given the strength of the Tribunal's findings, this is not a case where it was required to consider in the alternative whether the applicant might fear persecution or harm by reason of her religion if it was wrong in rejecting her claim to be a Christian: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).