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MIGRATION - Credibility - whether need to invite comment.

NAEL v Minister for Immigration [2002] FMCA 144 (18 July 2002)

NAEL v Minister for Immigration [2002] FMCA 144 (18 July 2002)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEL v MINISTER FOR IMMIGRATION
[2002] FMCA 144



MIGRATION - Credibility - whether need to invite comment.



Applicant:
NAEL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 326 of 2002



Delivered on:


18 July 2002



Delivered at:


Sydney



Hearing Date:


28 June 2002



Judgment of:


Barnes FM



Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002

VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804

SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479

Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397

Awan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577

Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196

Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 277

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109

NAING v Minister for Immigration and Multicultural Affairs [2000] FCA 344

Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087

Forster & Jododex Australia Pty Ltd [1972] 127 CLR 421

Zhan v Minister for Immigration and Local Government and Ethnic Affairs [1993] 45 FCR 384

Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238

NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

REPRESENTATION

Counsel for the Applicant:


Mr R Bromwich



Solicitors for the Applicant:


CLAYTON UTZ LAWYERS



Counsel for the Respondent:


Nil



Solicitors for the Respondent:


NEWMAN & ASSOCIATES



ORDERS

(1) That the application be dismissed.

(2) That the Applicant pay the Respondent's costs calculated in accordance with Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 326 of 2002

NAEL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 18 February 2002 affirming a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The applicant entered Australia on a Short Stay (Visitor) (Class TR) Subclass 676 Tourist (Short Stay) visa on 25 June 1998. Such visa was valid until 25 September 1998. However, on 11 August 1998 the applicant applied for a Protection (Class AZ) visa and was granted a Bridging A (Class WA) visa. On 12 October 1998, before the application for a protection visa had been determined, the applicant applied for a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa. He then became the holder of a Bridging C (Class WC) visa. On 15 October 1998 his application for a Protection visa was refused.

3. On 10 June 1999 a delegate of the Department of Immigration and Multicultural Affairs refused the application for the Temporary Business Entry visa. This refusal was the subject of the applicant's application to the Tribunal on 2 July 1999. The Tribunal affirmed the Department's decision. The applicant filed an application for review in the Sydney Registry of the Federal Court on 14 March 2002.

4. On 15 May 2002 Allsop J ordered that the matter be transferred to this Court. The matter was listed for hearing on 12 June 2002 at 10.15am. On that date, on the application of the applicant, it was adjourned until Friday, 28 June 2002. The applicant filed an amended application and written submissions on 19 June 2002. He claimed that the Tribunal had failed to comply with section 359A of the Migration Act 1958 (Cth) and in so doing had misled the applicant about the issues with which the Tribunal was concerned (namely the credibility of the applicant). It was further alleged that the Tribunal had failed to apply all or any of the tests which a Tribunal could reasonably be expected to apply when examining a person's credibility.

The law

5. This application was lodged after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). It was transferred to the Federal Magistrates Court pursuant to section 31AB of the Federal Court of Australia Act 1976 (Cth). Under section 483A of the Migration Act 1958 (Cth) the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. The Federal Court has jurisdiction in relation to matters arising under the Migration Act pursuant to sections 39B and 44 of the Judiciary Act 1903 (Cth) (see sections 475A and 477 of the Migration Act and item 8 (i) of the Migration Legislation Amendment (Judicial Review) Act 2001). Section 39B of the Judiciary Act confers jurisdiction on the Federal Court (and hence by section 483A of the Migration Act on the Federal Magistrates Court) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

6. However, pursuant to section 474(2) of the Migration Act the Tribunal's decision is a "privative clause decision". Section 474(1) provides that a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any court. It is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court on any account.

7. The effect of these provisions is complex. There have been numerous judgments at first instance in the Federal Court revealing significant differences of opinion about these issues. Some of these judgments are summarised in the recent decision of Ryan J in VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. In addition to differences of opinion as to the scope of section 474 there have also been differences in approach, in particular as to whether to consider first whether there is an error on the part of the Tribunal of the kind which would enliven a court's powers under section 39B of the Judiciary Act and only address the effect of 474 of the Migration Act if there is such an error (see for example SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 (Mansfield J)) or whether to consider first whether section 474 applies and if it does to go no further (Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 (Heerey J)). At the time of writing such differences (and determination of the scope for judicial review in light of section 474) await resolution by the Full Court of the Federal Court. Judgement has been reserved by that Court in relation to a number of appeals which raise these issues.

8. In these circumstances it was submitted by the applicant that should the court find that there was an error on the part of the Tribunal of the kind which would enliven a court's powers under section 39B of the Judiciary Act, determination of the effect of section 474 of the Migration Act should await the handing down of the decisions by the Full Court of the Federal Court (at which time the applicant should have the opportunity to make further submissions). In Mr Newman's words, judgment should be deferred if the applicant "reaches first base". The respondent submitted that whatever view one took of the privative clause, even on the most generous approach, the applicant could not succeed. For the reasons given below, having considered all of the evidence and the submissions made to me in this matter, I have reached the view that the applicant has not established an error on the part of the Tribunal of the kind which would enliven a court's powers under section 39B of the Judiciary Act. Accordingly it is not necessary for me to determine the application of section 474 or to await the guidance of the Full Court of the Federal Court. Whatever the effect of the privative clause, the applicant cannot succeed.

The grounds for the relief claimed

Section 359A

9. Section 359A provides:-

(1) Subject to subsection (2), the Tribunal must:

a. Give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

b. Ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

c. Invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

a. Except where paragraph (b) applies - by one of the methods specified in section 379A; or

b. If the applicant is in Immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) (repealed)

(4) This section does not apply to information:

a. That is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person if a member; or

b. That the applicant gave for the purpose of the application; or

c. That is non-disclosable information.

10. To consider the applicant's argument in relation to section 359A it is necessary to outline the criteria for a Subclass 457 visa which were in issue and aspects of the proceedings before the Tribunal.

11. In essence the application was refused by the Department because the applicant had not demonstrated that he had the skills necessary to perform the nominated activity (clause 457.223 of Part 457 of Schedule 2 of the Migration Regulations). As the applicant did not satisfy clause 457.223 he did not satisfy all the requirements for grant of a Subclass 457 visa. He was not assessed against the other requirements for that subclass of visa. He did not meet the requirements for the other subclass of visa within Class UC.

12. A further relevant criterion for a Subclass 457 visa is in clause 457.211 which provides that at the time of the application the applicant must either hold a substantive visa of a specified class or, if the last substantive visa held was of a class specified, then he must satisfy certain criteria in Schedule 3 of the Migration Regulations including a requirement that he was not the holder of a substantive visa at the time of the application because of factors beyond his control (Item 3004(c) of Schedule 3 to the Migration Regulations).

13. It was not disputed that at the time of the applications for the Class UC visa (12 October 1998) the applicant was not the holder of a substantive visa. He no longer held a Visitor visa. He held a Bridging A (Class WA) visa granted because of his application for a Protection visa. A bridging visa is not a substantive visa (section 5, Migration Act 1958 (Cth)).

14. The application to the Tribunal was lodged on 2 July 1999. On 3 April 2001 the applicant's migration agent provided a written submission in support of the application. It was submitted that the applicant met the criterion in clause 457.211 as: "The applicant was holder of visitor visa and before the expiry of his visa the applicant had made an application. The applicant was not unlawful at the time of the application therefore he satisfied Schedule 3 as well." The letter also addressed what the agent describes as "the contrary information" as follows:

Someone filled the protection visa application other than the applicant and it was filled without the knowledge of the applicant. He did not know the content of the application other than the claims made in relation to the protection visa application. The applicant is still wondering how that person put such information without telling him. The applicant apologises for the inconvenience caused. The applicant is only educated up high school and he is not able to fill the complex application as protection visa application.

15. On 26 April 2001 the Tribunal sent the applicant a letter under section 359A of the Migration Act 1958 inviting him to comment in writing on specified information relating to expiration of the approval of the sponsorship and nomination, on evidence suggesting that the applicant had not demonstrated that he had skills necessary to perform the position of chef and on inconsistent information regarding his work experience. It was explained that this information was relevant to the review because the basis upon which the applicant had applied for the visa was that he would be employed by an approved business sponsor yet he may not have the skills necessary to perform the nominated position of chef.

16. In a later paragraph of the letter the Tribunal also requested that the applicant provide a statement outlining the factors beyond his control which led him to cease holding a substantive visa and the compelling reasons which he believed justified the grant of the visa. A file note by a Tribunal officer records that the officer telephoned the applicant's adviser on 1 June 2001 regarding his client's response to the section 359A letter dated 26 April 2001 as no response had been received. A further call was made on 7 June 2001 and the agent advised that the Tribunal's section 359A letter had been answered by the submission of 3 April 2001. There was further correspondence in relation to the issue of the expiration of nomination and sponsorship approval. The Tribunal held a hearing on 12 October 2001. The applicant attended the hearing and gave evidence with the assistance of a Punjabi interpreter.

17. According to the Tribunal the applicant gave evidence in relation to his earlier application for a protection visa as follows:-

...he explained that he had been assisted and advised by a well educated student friend shortly after his arrival in Australia to make this application. He had signed the form involved but the remainder of the form was completed by his friend. He had been unaware of the contents of the form but had come to know about this later. The form was incorrect when it indicated he had worked as a farmer in India. The claims to refugee status were just a story and not true. The primary visa applicant was not particularly scared of returning to India in 1998. The primary visa applicant has signed the form because he was new to Australia at the time, his English was limited at that time and he was misadvised by friends. He believes these things constituted circumstances beyond his control.

18. At the hearing the presiding member requested further submissions addressing the Schedule 3 criteria. On 21 October 2001 the applicant's migration agent provided a written submission stating that:

The applicant was new in Australia at that time and someone misguided him in his application and ended up with lodging an application for the protection visa. Initially he was told that it would be a working visa. The applicant received the passport after the expiry of the visa and there was no permission to work attached to the visa, the applicant inquired about it and found that his friend had lodged a protection visa for him.

The applicant was not aware for the system and procedures in Australia. The applicant was a skilled chef and started looking for the sponsor to sponsor him. The applicant finally found the current and made an application as soon as possible and could not lodge the application because of the situation being out of his control due to the deception of a person who had promised to assist him in his visa application

19. On 18 February 2002 the Tribunal decided to affirm the decision not to grant the applicant a Class UC visa. The Tribunal was not satisfied that the applicant was not a holder of a substantive visa at the time of the business visa application because of factors beyond his control. The applicant had acknowledged signing the protection visa application form and saw it before lodgment. The Tribunal did not accept his claim that he was unaware of the contents of his application nor its purpose because of his limited English. The application contained detailed information in relation to his schooling and former addresses which the applicant had conceded was correct. Given this the Tribunal did not accept that the application could have been completed by a friend with no reference to the visa applicant. Nor did the Tribunal accept that the applicant was unaware of the type of application being made. He had indicated at the hearing that his friend informed him that he should apply for a protection visa, contrary to the later submission from his adviser suggesting that the applicant believed the application was for a working visa. The Tribunal concluded that the applicant was in fact aware of the contents of and reasons for the protection visa application. Further it concluded that he ceased to hold a substantive visa because he pursued an application containing untruthful claims regarding his background and circumstances. It found that the applicant was actively involved in and understood that process. That was the reason he did not hold a substantive visa when the application which was the subject of the review was made. In the Tribunal's view this was deliberate behaviour on the part of the applicant and could not in any way be characterised as a factor beyond his control.

20. In light of this background the applicant contends that the issue of credibility was at the forefront of the Tribunal's mind in reaching the view that the applicant had not failed to hold a substantive visa for reasons beyond his control. It is submitted that this formed the reason for the Tribunal's decision, the Tribunal's concerns in this respect should have been put to the applicant as information on which his comments were invited in the manner specified by section 359A of the Migration Act. It was suggested that the intention of section 359A is to alert the applicant to key "issues" at the forefront of the Tribunal's mind which would allow it to affirm the Department's decision, that in the area of credibility there must be strict compliance with section 359A and that the issue must be put fairly and squarely as the issue which the applicant has to confront.

21. Section 359A obliges the Tribunal to give the applicant particulars of "information" it considers to be the reason, or a part of the reason, for affirming the decision under review. Mr Newman for the applicant contended that the word "information" in section 359A encompasses relevant issues. In support of the proposition that there was a breach of section 359A which was an error reviewable pursuant to section 39B of the Judiciary Act the applicant referred to the decision of North J in Awan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 in which Mansfield J held that a breach of section 359A of the Migration Act was intended to be subject to challenge despite the existence of section 474. This issue will only arise for consideration if a breach of section 359A is established.

22. It is not in dispute that the section 359A letter of 26 April 2001 did not invite comment under section 359A on credibility. The applicant submits that it should have done so or that the Tribunal should have sent a further section 359A letter to the applicant either after the Tribunal hearing or after receipt of the different account in the subsequent letter from the applicant's migration agent.

23. I am satisfied that it is appropriate in this case to consider first whether section 359A applies as submitted and, if so, whether it was breached by the Tribunal before considering the effect and operation of the privative clause in section 474 of the Act (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 (Mansfield J)).

24. Section 359A is in Division 5 of Part V of the Migration Act which deals with the conduct of review by the Tribunal. Section 359B imposes further requirements in relation to the way in which comments are to be given where a person is invited under section 359A to comment on information. There are equivalent provisions (sections 424A and section 424B) in relation to the Refugee Review Tribunal.

25. The obligations created by these provisions apply prior to, during and after the Tribunal hearing. The sections have an ongoing operation until the Tribunal delivers its decision. As was said in relation to section 424A by Merkel J in the Full Court of the Federal Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 such a provision enacts a basic principle of procedural fairness that a person whose interests are likely to be affected by an exercise of power should be given an opportunity to deal with information adverse to that person's interests. The Full Court also indicated in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 that ultimately it is the Tribunal's reasons for decision which will disclose whether information has the particular character of being information which the Tribunal considers "would" be the reason or part of the reason for affirming the decision under review and it is by reference to those reasons that the Tribunal's compliance with the provision is to be measured.

26. The question of the scope of section 359A has been considered in a number of single judge decisions of the Federal Court. While these decisions preceded the amendments to the Migration Act which introduced section 474 they remain relevant as to the scope of section 359A. In Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 277 Emmett J rejected the argument that section 359A requires the Tribunal to notify the applicant as to the standard to be satisfied in relation to the visa in question or that it has to make it "crystal clear" to an applicant what the issues before the Tribunal are. His Honour pointed out that while section 359 (which deals with the Tribunal seeking additional information) and section 359A use the term "information", section 358 provides that an applicant may make submissions relating to the "issues" arising in relation to the decision under review. It would be surprising if the object of section 359A was to require the issues to be stated by the Tribunal when there is no reference to that concept in the section itself. His Honour concluded that use of the term "information": "signifies matter or facts or data which can be obtained from some source and which would not otherwise be available to a Tribunal member. It does not signify the words of the statute or the regulations pursuant to which a decision is being made". Support for this view, with which I agree, may also be found in the exceptions contained in subsection 359A(4). As Emmett J explained, the exception in subsection 359A(4)(a) indicates that the section is concerned with facts or data or matters relating to the applicant or some other specified person while subsection 359A(4)(b) indicates that information may consist of something given to the Tribunal by the applicant. It is quite "inapt" to speak of the criteria contained in the regulations as being "information". In Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Sackville J rejected a claim that the Refugee Review Tribunal was bound to give the applicant particulars of its concerns about his or her credit under section 424A. His Honour took the view that the obligation in section 424A(1) applies when the Tribunal becomes aware of some fact or circumstance that appears to be adverse to the applicant on an issue relevant to the applicant's case. (Also see NAING v Minister for Immigration and Multicultural Affairs [2000] FCA 344 (Hill J) at [31]). The section was not concerned with the subjective thought processes of a Tribunal member. A subjective determination by the Tribunal that an applicant's account is or may not be credible does not enliven the obligation imposed by section 424A. Similarly I am satisfied that it does not enliven the obligation imposed by section 359A.

27. In both Mohammed and Tin reference was made to the dictionary definitions of "information" in support of the view that the section is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal. The Macquarie Dictionary gives as relevant definitions:

(i) Knowledge communicated or received concerning some fact or circumstance;

(ii) Knowledge on various subjects however acquired.

28. Finally in Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 1087 the Full Court of the Federal Court suggested that it seems "obvious" that in section 359A the word "information" is used "to refer to a statement by way of an assertion of fact".

29. I am satisfied on the reasoning in these cases that section 359A relates to information in the sense of facts or circumstances. It is not concerned with the subjective thought processes of the Tribunal member. The Tribunal is not required by section 359A to notify applicant of concerns about his credit or to notify the `issues' relevant to its determination or the standard to be satisfied in relation to the visa in question. It was not necessary for the Tribunal to invite comment under section 359A on concerns about whether or not the applicant would eventually be able to provide information which established that all of the criteria for the class of visa for which he applied had been met. As such matters are outside the cope of section 359A it was not necessary for the Tribunal to notify and invite comment on these issues in the section 359A letter sent on 26 April 2001. Nor was it necessary for the Tribunal to give a subsequent notice under section 359A after hearing the evidence of the applicant at the hearing in relation to the circumstances of his application for a protection visa or after receipt of the submissions of 21 October 2001.

30. If I am wrong in my view of the scope of "information" in section 359A(1), then the obligation in that subsection would still not apply in relation to the different accounts given of the circumstances of the application for a protection visa because of the exception in section 359A(4)(b). The accounts of the circumstances of the protection visa application were all given by the applicant to the Tribunal for the purpose of the application whether through his agent in the letters of 3 April 2001 and 21 October 2001 or by his oral evidence at the hearing on 12 October 2001. This was not information from some other source or given by the applicant to the Department rather than to the Tribunal. I do not accept the argument that the content of the application for the Protection visa itself was information which might form the reason or part of the reason for affirming the decision under review and hence subsequent to section 359A. The issue was whether the applicant ceased to hold a substantive visa for reasons beyond his control, not whether the claims in the protection visa application were true. It was the circumstances surrounding the signing of the form and the evidence of the applicant in this respect as well as his admissions at the hearing in relation to the accuracy of some of the information in the application form that led the Tribunal to conclude that the applicant was aware of the contents of and reasons for the protection visa application and that he ceased to hold a substantive visa because he pursued an application containing untruthful claims regarding his background and circumstances such that this was deliberate behaviour and could not be characterised as a factor beyond his control within Item 3004(c) of Schedule 3.

31. Further even if one took the view that strictly speaking section 359A required a notification to be given to the applicant in relation to the issue of credibility in light of the differing accounts of the circumstances surrounding the protection visa application, this would be at most a technical failure, it being clear that there has been substantial compliance with section 359A. In this respect I note that in the recent case of VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804, Ryan J suggested that not all infractions of the rules of natural justice are so gross that it could be said that the decision-maker is not exercising the jurisdiction conferred upon him or her. It is necessary to consider the nature of the particular procedural irregularity before categorising the contravention as a jurisdictional error. In this case the objective of section 359A has been achieved and the applicant has been provided with the degree of procedural fairness intended by the legislation. Any breach would be a mere technical breach which would not deprive him of any benefit which he was entitled to receive. (See Forster & Jododex Australia Pty Ltd [1972] 127 CLR 421, Zhan v Minister for Immigration and Local Government and Ethnic Affairs [1993] 45 FCR 384 and Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 at

[91] - [92]. It would not be such as to warrant discretionary relief under section 39B (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577). The applicant was put on notice of the relevance of the Schedule 3 criteria by the request for a statement in the letter of 26 April 2001. His migration agent had already addressed the issue. It was discussed further at the hearing and he was then given an opportunity to make a further submission. He did so.

32. For the sake of completeness I note that if the rules of procedural fairness at common law apply to the decision-making processes of the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238) it has not been established that such rules were breached by the Tribunal. The applicant had an opportunity to put his case. He was aware of the matters which were of significance, not only from the request for a statement in letter of

26 April 2001 which followed the express reference to the relevant criteria in the earlier letter from his migration agent but also because the matter was discussed at the hearing. He had a further opportunity to make submissions on the relevant issues which he did through his agent. It is therefore unnecessary to address the question of whether a breach of the common law rules of procedural fairness would give rise to a jurisdictional error or whether a remedy under section 39B of the Judiciary Act would be available despite the introduction of section 474 of the Act. (Compare NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 and Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438. I note that the recently enacted Migration Legislation Amendment (Procedural Fairness) Act 2002 does not apply.)

Credibility tests

33. The second ground relied upon is that the Tribunal failed to apply all or any of the tests which a Tribunal could reasonably be expected to apply when examining a person's credibility. Such argument takes issue with the Tribunal's conclusion as to the knowing involvement of the applicant in the application for a protection visa based on his signature of the protection visa application form. It was suggested that any attack on the applicant's credibility was misconceived as, given the applicant's poor English (as indicated by the script in which he signed the original application for a business entry visa), the Tribunal ought to have considered whether he really understood what was being submitted on his behalf in the protection visa application made at a prior time.

34. It was submitted that the applicant's English ability and other issues should have been canvassed by the Tribunal. No authority was cited in support of this proposition. However, the issue was not whether the applicant could understand English or what the script in which he wrote his name at around the time of the application indicated in relation to his comprehension of English, but whether he was party to the process of the application for a protection visa so that the failure to hold substantive visa at the time of the application for the Class UC visa was not beyond his control.

35. This second ground is in substance an attempt at seeking impermissible merits review of the Tribunal decision. It seeks to revisit the fact-finding process engaged in by the Tribunal and elevate the possibility of a contrary finding into an error of law. This is unsupported by relevant authority. In so far as the applicant challenges the Tribunal's findings on credibility McHugh J in Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] is in point:

If the primary decision-maker stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.

36. Having considered the Tribunal's reasons I am satisfied that they do not demonstrate error reviewable pursuant to section 39B of the Judiciary Act. The Tribunal correctly set out and interpreted the law applicable to its task and correctly applied that law to its findings and conclusions. Its reasons show that the Tribunal clearly considered on their merits the applicant's claims and submissions. The Tribunal reached its decision based upon its findings and conclusions made after considering the applicant's evidence and other material that was available to it.

37. As I have concluded that the Tribunal did not commit a potentially reviewable error and as it has not been established that there was any denial of natural justice or lack of procedural fairness, it is unnecessary to determine whether, in light of section 474, the court has power to grant relief in respect of the grounds relied upon by the applicant. The application should be dismissed.

38. Counsel for the respondent indicated in the hearing that if the application was dismissed he sought an order for costs. No amount was specified. I agreed to hear any further submissions as to costs when delivering judgment. No such submissions were made.

I consider that it is proper that the applicant pay the respondent's costs. If the Federal Magistrates Court Rules 2001 as to costs were applied in this case this may result in an award of costs which exceeded those incurred. This would be inappropriate. Accordingly, pursuant to Rule 1.05(2) of the Federal Magistrates Court Rules, I set costs in accordance with the Federal Court Rules. I order that the applicant pay the respondent's costs determined in accordance with Order 62 of the Federal Court Rules.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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