FEDERAL COURT OF AUSTRALIA SZVVW v Minister for Immigration and Border Protection [2015] FCA 889 Citation: SZVVW v Minister for Immigration and Border Protection [2015] FCA 889 Appeal from: Application for leave to appeal: SZVVW v Minister for Immigration and Border Protection [2015] FCCA 933 Parties: SZVVW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 454 of 2015 Judge: FARRELL J Date of judgment: 20 August 2015 Catchwords: MIGRATION – application for leave to appeal – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal affirming decision of delegate of Minister to refuse protection visa – consideration of merits of proposed grounds of appeal Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 424A, Pt 7 Div 4 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Khan v Minister For Immigration and Citizenship (2011) 202 FCR 462 Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SZVVW v Minister for Immigration and Border Protection [2015] FCCA 933 Date of hearing: 18 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Solicitor for the Applicant: Mr M Newman of Newman & Associates Solicitor for the First Respondent: Mr R White of Mills Oakley Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 454 of 2015 BETWEEN: SZVVW Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 20 August 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the second respondent be changed so as to read "Administrative Appeals Tribunal". 2. The application be dismissed. 3. The applicant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 454 of 2015 BETWEEN: SZVVW Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE: 20 August 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave to appeal a judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 13 April 2015: see SZVVW v Minister for Immigration and Border Protection [2015] FCCA 933 ("SZVVW"). The primary judge dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse to issue a Protection (Class XA) visa to the applicant. 2 The Minister made an application to amend the name of the second respondent to "Administrative Appeals Tribunal". I granted that application. Background 3 The applicant is a male citizen of India. He applied for a Protection (Class XA) visa on 25 November 2013. A delegate of the Minister refused to grant the visa on 21 March 2014. 4 The basis for the applicant's claim to protection is set out at [6]-[8] of the Tribunal's Statement of Decision and Reasons dated 14 November 2014 ("Decision Record") as follows: [6] In summary, in his written statements, the applicant claims he was born in Kerala, India, and is married with two children. He claims that in his region Hindus and Muslims constitute the majority of the population. The groups RSS [Rashtriya Swayamsevak Sangh] and PDP [People's Democratic Party] are the two major religious fundamentalists groups in his region, and there are frequent clashes between the two groups and it was impossible to lead a peaceful life there. [7] The applicant claims he and his wife were active member[s] of the CPI(M) [Communist Party of India (Marxist)] which opposed religious fundamentalists [sic] activities, communalism and terrorism. The work of members of the CPI(M) was opposed by the RSS and attacks and violent clashes occurred. The applicant claims that due to the constant humiliation and harassment of RSS, about 90 families of the pulayas caste were converted to Christianity. The RSS alleged that the applicant's party were [sic] behind the mass conversion and tried to isolate them [sic] from the community. The applicant claims that during this time his wife was campaigning as a member of the CPI(M) party in the local governing body elections and was run down by a car driven by some members of the rival party. She sustained a fractured bone above her ankle and required surgery and was bed ridden for four months. She won the election and became the Welfare Standing Committee Chairperson of [named] Block Panchayat. The applicant claims the RSS workers constantly threatened them with dire consequences including death by their hands if they tried to interrupt their activities, which made it difficult to lead a normal and peaceful life. The applicant, and then his wife, travelled to England and returned to India after they felt the situation had improved. [8] The applicant claims three months after his arrival back in India he was attacked by four rival party members. His arm was broken, his leg was cut, and he was stabbed in the face above his left eye, and the applicant was subsequently admitted to a private hospital. The applicant also claims that last year when returning home with his family they happen[ed] to pass celebrations held by the RSS. The applicant and his family were abused and insult[ed] and attacked. The applicant defended himself with a log of wood. Two days after this incident at about 2 AM attackers pelted stones at the applicant's house and broke three of the glass windowpanes. After that incident the applicant spoke to several friends and then came to Australia. Tribunal Decision 5 At the Tribunal hearing on 23 October 2014, the applicant submitted a number of documents listed in the Decision Record at [10] including: a photocopy of a letter headed "Medical Certificate" dated 19 October 2014 from a named doctor which states that the doctor treated the applicant for multiple injuries between March 2010 and October 2010; a photocopy of a "Certificate" dated 19 June 2002 from a department of orthopaedics of a medical college; a document headed "Certificate" dated 14 October 2014 stating that the applicant's wife had been acting as a Block Member of the [named] Block Panchayat between 1995-2000 and had been standing Committee Chairperson during 2000-2005; a photocopy of an identity card in relation to the applicant's wife; and copies of newspaper articles dated 10 and 16 October 2014 in relation to recent clashes between RSS, BJP and CPI(M) activists. 6 The applicant told the Tribunal that nothing had happened to his children or his wife since he left India in October 2013 until six days prior to the hearing. He said that his wife had been approached at a bus station by three or four people who had told her that her husband would be killed if he returned to India. The applicant told the Tribunal that his wife had made a "First Information Report" to the police in relation to the incident: Decision Record at [11] and [21]. 7 The Tribunal raised with the applicant concerns about his credibility arising out of inconsistencies between his written statements and oral evidence, changes in his evidence when questioned as to detail, the plausibility of his claims and his delay in leaving India: Decision Record at [13]. 8 First, the Tribunal identified an inconsistency between one of the applicant's written statements (that the applicant moved around to escape being targeted) and his oral evidence given at the Tribunal hearing (that he remained at his wife's house between 2000 and 2013 apart from the time he spent in England between 2004 and 2009). The Tribunal noted that the second and more detailed of the applicant's written statements did not contain evidence that the applicant moved around to escape being targeted. The Tribunal said that in isolation it would not give much weight to the inconsistency but thought that the inconsistency "reflects poorly on his credibility and the reliability of his evidence" in light of the "other concerns the tribunal has in relation to the applicant's credibility and the reliability of his claims": Decision Record at [14]. 9 Secondly, the applicant told the Tribunal at the hearing that he and his wife initially thought that the incident with a car in 2000 from which she received an injury was an accident for which she received compensation a few years later. This view changed after things were said by a drunken RSS supporter in May 2013. Although the Tribunal accepted that the applicant's wife had been injured by a car in 2000 (taking into account the orthopaedic certificate provided), it found that the applicant's claims that the car that injured his wife was connected to RSS to be "vague, confused and unpersuasive" and it was concerned that he fabricated the connection to RSS to support his application. It found that the applicant's oral evidence "was not consistent and changed in response to questions on detail": Decision Record at [15]-[16]. 10 Thirdly, the Tribunal was not persuaded that the applicant told the truth in his evidence that injuries to the applicant's arm, leg and face (which the Tribunal found to be consistent with the medical certificate relating to treatment in 2010) were inflicted in an attack in March 2010 by supporters of the RSS. The Tribunal found that the applicant changed his evidence when questioned about how he knew his attackers were from RSS: Decision Record at [17]. 11 Fourthly, the Tribunal was concerned about the plausibility of the applicant's claims: The applicant claimed to be subject to "ongoing tension" and "vague indirect threats" after his wife's accident but no specific threats; she remained in office until 2005. He went to England and worked there illegally between 2004 and 2009 "waiting for everything to calm". The Tribunal found the applicant's reasons for leaving India to stay in England illegally to be "vague and unpersuasive": Decision Record at [18]. The Tribunal put to the applicant that he lived in the same house from 2000-2013 (except for the time spent in England) despite the claimed attacks on him in 2010 and threats to his family and attacks on his house in 2012 and did not leave to avoid danger, and yet it was a vague threat from a drunken RSS supporter in May 2013 which the applicant claimed to have triggered his decision to come to Australia. The Tribunal was not persuaded by his explanation that he could not leave with his wife and children and go to another part of India and now his children were older and able to understand: Decision Record at [19]-[20]. The Tribunal queried the plausibility of the claim that the applicant would be the target of ongoing hostility from RSS supporters given that he told the Tribunal that he had been an inactive member of CPI(M) since 2000, although he continued to help in other ways until his activities dropped away after his return from England. It also queried why he would be a target when his wife was the continuing member of CPI(M) and had a much higher political profile and she and their children had not received threats until six days before the hearing when she was approached at a bus stop. The Tribunal found his response that people do not attack women in the same way as men unpersuasive in light of the applicant's claim that his wife had been hit by a car driven by RSS supporters in 2000: Decision Record at [21]. The Tribunal said that it had significant concerns about the plausibility of the claim that the applicant's wife was recently approached by a group of people who "said they knew her husband was in Australia and stated that they had left him alone last time, but when he comes back they will kill him". The Tribunal considered the timing of the event "implausible and very suspicious" as on the applicant's evidence, nothing had happened to his wife and children since the incident in 2012 when they were harassed at the festival and they continued to live in the family home: Decision Record at [24]. 12 At the conclusion of the hearing the Tribunal noted its concerns concerning the applicant's late provision of documents in support of the application and that "country information" indicated that "false and fraudulent documents are easily obtained in India". It cited "Canada: Immigration and Refugee Board of Canada, India: Availability and prevalence of fraudulent identity documents, including membership cards of political parties (2011-April 2014), 5 May 2014, IND104839.E, available at: http://www.refworld.org/docid/538c369f4.html [accessed 6 November 2014]" ("Canadian Report"). The Tribunal gave the applicant 14 days to provide any further documents in support of the claims: Decision Record at [22]. 13 On 4 November 2014, the applicant provided further documents including a certificate of marriage, a copy of an undated letter in relation to the role played by the applicant's wife, a "First Information Report" and statement in English translation: Decision Record at [23]. 14 The Tribunal accepted some aspects of the applicant's evidence. It accepted that the applicant was married to a member of the CPI(M) who was an elected member of the local government between 1995 and 2005: Decision Record at [24]. It accepted that he had been a member of CPI(M) from 1984 to 2000 and undertaken only limited party activity after that and found that he had a very low political profile, if any, and did not accept that he would be of any adverse interest to any political parties or their supporters in India: Decision Record at [25]. 15 The Tribunal was not satisfied that the applicant told the truth in relation to some aspects of his claims. It was not satisfied that: the car that injured his wife in 2000 was driven by rival political party supporters or resulted from their activity; or the applicant was beaten by four members of the RSS in 2010; or he and his family were harassed and threatened during a festival in 2012; or the family house was damaged by RSS supporters; or the applicant was continually threatened by RSS supporters or the applicant left India because of those threats; or the applicant's wife was recently approached by three or four people who threatened the applicant's life if he returned to India. See the Decision Record at [26]. 16 The Tribunal found that the applicant was not "a witness of truth" and found that there was no real chance that the applicant will be harmed if returned to India and did not have a well-founded fear of persecution: Decision Record at [28]. Having regard to the matters set out in the Decision Record at [26] (repeated at [31]) the applicant was not entitled to complementary protection. Federal Circuit Court Decision 17 The applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court on 17 December 2014. The applicant filed an amended application on 31 March 2015. The matter was listed for a hearing pursuant to r 44.12 of the Federal Circuit Court Rules on 13 April 2015. On the same day, the primary judge dismissed the application. 18 The amended application identified three grounds of review (as written): Ground one The RRT erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. Ground two The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA. Particulars The Respondent did not raise /or put to me in writing parts of the adverse decision for me to comment in writing. Ground three There is jurisdictional error as the RRT should have invited me for a second hearing to comment orally on the adverse information and without giving me the opportunity to invite me for a second hearing involved denial of procedural fairness and legal unreasonableness in my circumstances. I am willing to listen the RRT audio tapes to find any other legal errors and if I find it I will submit a transcript to this this court before a hearing date. 19 The primary judge identified the essence of the applicant's complaint as follows (SZVVW at [10]-[11]): [10] All of the grounds appear to arise from the same complaint, which the applicant identified as a failure by the RRT to give him an opportunity to comment on information that it ultimately found to be adverse to him. The applicant asserts that the information should have been given to him in writing for comment and that he should have been invited to a second hearing to comment orally on that adverse information. [11] The information identified by the applicant was post-hearing material, in particular a document headed "First Information Report". That First Information Report is a document that purports to be a police report dated 25 October 2014 in respect of an event involving the applicant's wife ("First Information Report"). 20 The primary judge found that the Tribunal did consider the First Information Report, but that in light of a number of factors, it was not satisfied that the report was genuine or that the information it contained was true: SZVVW at [14]. 21 In relation to ground one, the primary judge held that, on a fair reading of the Tribunal's Decision Record, the Tribunal did consider whether the applicant met the complementary protection criteria, and it had concluded on the evidence and material before it, and for reasons that were open to it, that he did not: SZVVW at [15]. 22 As for ground two, the primary judge held that the complaint that the Tribunal's adverse credibility findings were not put to the applicant for comment does not establish jurisdictional error because the authorities establish that the Tribunal's subjective appraisals, thought processes and determinations do not constitute information that enliven any obligation under s 424A of the Migration Act 1958 (Cth): SZVVW at [16]. 23 The primary judge found that ground three was not made out because there was nothing to suggest that the Tribunal had not complied with its obligations under Div 4 of Pt 7 of the Migration Act, and nothing to suggest that the conduct of the Tribunal's review or the decision was legally unreasonable: SZVVW at [17]-[18]. 24 The primary judge also noted that there were two bare, unparticularised assertions made in an affidavit filed by the applicant that the Tribunal had failed to perform a detailed investigation and failed to consider the required terms and conditions: SZVVW at [19]. The primary judge held that this was not a case where the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact whose existence was easily ascertained: SZVVW at [20]. The primary judge found that the Tribunal's findings were open to it on the evidence and material before it and for the reasons it gave: SZVVW at [20]. 25 The primary judge found that the applicant had not identified any error on the part of the Tribunal that was capable of establishing jurisdictional error and that none was apparent on the face of the Decision Record. As a result, the primary judge was not satisfied that the application raised an arguable case for the relief claimed. Application to this Court 26 The primary judge's judgment is interlocutory in nature: r 44.12(2), Federal Circuit Court Rules. Therefore, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). 27 An application for leave to appeal was filed on 27 April 2015. In the late afternoon before the hearing, the applicant's representative filed a notice of appearance and brief written submissions. At the commencement of the hearing the applicant's representative sought leave to file new draft grounds of appeal. I granted leave as the Minister's representative did not object even though the grounds appeared to raise issues for the first time in this Court. 28 The proposed grounds are: 1. The Tribunal erred in law and in its jurisdiction when it sought to introduce an irrelevant consideration into the assessment of the veracity of the applicant, namely that the documents emanating from the sub-continent were all suspect. This in turn led to the Tribunal forming a negative view of the applicant generally. 2. The Tribunal erred in law and in its jurisdiction when it largely ignored the (undisputed) fact that both husband and wife had sustained serious injury. 29 The application for leave filed on 27 April 2015 indicated that the ground for leave was the ground of appeal set out in the draft notice of appeal, which I take now to have been superseded by the grounds set out at [28] in accordance with leave granted at the hearing. 30 To justify a grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Ground one 31 In relation to the first ground, the applicant complained that the Tribunal found that the applicant lacked credibility and his evidence was vague, inconsistent and unpersuasive because the Tribunal "cherry picked" evidence, that is, it took a dark view of evidence inimical to the applicant's credibility and did not give him "credit" for evidence which would support his credibility. In support of that argument, the applicant submitted that the Tribunal's broad statement in its Decision Record at [22] that "country information ... indicated that false and fraudulent documents are easily obtained in India" was gratuitous and irrelevant since the Tribunal made no attack on the documents submitted to it at the time of the hearing, it coloured the Tribunal's attitude to the applicant (including any document provided by him such as the statements provided with his application) and it did not accurately reflect the Canadian Report, which was the country information cited in support of it. 32 As evidence of the negative light cast on the applicant, the applicant relied on the Tribunal's treatment of the discrepancy between the applicant's brief written statement and his oral evidence concerning where he said he was after he was attacked: see [8] above. The applicant said that as the second document corrected any error before the applicant gave oral evidence to the delegate or the Tribunal, the applicant should have been given credit for that fact and the Tribunal should not have placed any weight or reached any adverse view of the applicant's evidence as a result of the discrepancy. 33 The applicant also suggested that the Tribunal misinterpreted the applicant's evidence as to what was said to him by the drunken RSS supporter in May 2013 (see [9] above) and cavilled with the Tribunal's evaluation of the applicant's evidence concerning his identification of his attackers in 2010 (see [10] above). 34 Last, the applicant complained of the following from [18] of the Decision Record: ... The Tribunal raised the issue noted in the [delegate's] decision record, that the department had received an allegation that the applicant had travelled to Australia for employment purposes and he had done the same in England. The applicant denies the allegation. The Tribunal gives little weight to the anonymous allegation. Nevertheless, it found the applicant's reasons for leaving India and staying illegally in England between 2004 and 2009 vague and unpersuasive. 35 The applicant suggested that the reference to the anonymous allegation is simply pejorative of the applicant's credit and is not otherwise taken up in the reasons. 36 I accept the Minister's submission that the proposed first ground of appeal has no prospect of success. Most importantly, the ground does not seek to identify any error in or address in any way the primary judge's reasons. 37 In any event I reject the applicant's arguments in support of this ground. 38 First, as the applicant produced a number of documents which purported to be medical certificates and other documents of an apparently "official" character sourced from India in support of his claims, it was open to the Tribunal to consider relevant information to which it had access which might bear on the authenticity of those documents in assessing the weight to be given to them. The power of the Tribunal to gather "country information" in support of its functions and the obligation of the Tribunal to use information so gathered was recognised by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [37] (French CJ, Heydon, Crennan, Kiefel and Bell JJ): ... Section 424(1) confers a "general power" on the RRT to "get any information that it considers relevant". The only limitation on that power is that the RRT "must have regard" to that information in making its decision. As pointed out by the first respondent, the general power is apt for the obtaining of country information which might involve research or utilisation of library resources or publicly available information on the internet. ... That process is consonant with the inquisitional nature of the RRT and the statutory obligation upon it to adopt procedures which are not only "fair [and] just" but are also "economical, informal and quick"… (footnotes omitted) 39 Second, s 424A(3) specifically excludes "country information" from the obligation imposed on the Tribunal under s 424A(1) to give the applicant clear particulars of any information which the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and invite the applicant to comment or respond to it. Notwithstanding this provision, it was good process for the Tribunal to warn the applicant of the effect of the information contained in the Canadian Report. It put the applicant in a position to take any steps he considered appropriate in the way of authenticating information which the applicant had provided or might provide in the 14 day period allowed to the applicant following the hearing: (see [12] above). This warning was appropriate given that the Tribunal expressed concerns about the plausibility of the incident giving rise to the First Information Report. It was also appropriate in a context where the Tribunal had not yet made a decision and there were a range of other documents on which the applicant relied, such as medical certificates. The fact that the Tribunal ultimately accepted the documents other than the First Information Report as genuine is not indicative that the Tribunal's warning was gratuitous or that its mind was coloured by the "country information", but rather that the Tribunal retained an open mind in considering all of the evidence. 40 Third, the Canadian Report was appropriately cited at [22] of the Decision Record. The applicant contended that the Canadian Report deals with identity documents, not police reports, and the Tribunal must have overlooked the following passage on page five of the Report: According to the AHRC representative, police documents are more difficult to obtain fraudulently than medical records ... He also noted that some states have searchable databases of First Information Reports ... making it harder for a fake report to go undetected ... The Associate Professor said that police reports might be genuine if they are printed on official government stationary [sic] and contain an official seal, but also said that these "should not be used as a certificate of authenticity"… 41 This statement alone indicates that there may be an issue as to whether a First Information Report is fraudulent. Further, this paragraph needs to be read in the context of the whole section of the Canadian Report on this topic. The opening paragraph on the same page is: According to the Associate Professor, fraudulent medical records, school records and police records are prevalent in India … Similarly the [Transparency International] representative said that there are fraudulent school, medical and police documents available … In addition, the Canadian official said that fraudulent medical records, school records and police records used in immigration applicants are "regularly encountered" by the embassy … 42 So, even though they may be harder to obtain, false police reports are nonetheless "prevalent", according to this information. The Tribunal's citation of the Canadian Report is fair and I do not accept that the Tribunal's reference to the country information in [22] of the Decision Record was gratuitous. 43 Fourth, I do not accept that the bases for the Tribunal's findings as to the applicant's credibility were coloured by the use of country information which indicates that some documents sourced from India may be fraudulent, but rather by the Tribunal's assessment of the applicant as a witness and the evidence before it. Indeed, the assessment of the authenticity of the First Information Report was not based on the "country information" alone but also on (1) the timing of the claim that the applicant's wife had been approached at the bus stop, being six days before the Tribunal hearing and the Tribunal's concerns about its plausibility, and (2) the other concerns the Tribunal had in relation to the applicant's credibility: Decision Record at [24]. It is also notable that the Tribunal did accept medical certificates and other documents provided by the applicant in support of his application in relation to the fact of injuries, the applicant's marriage and the position held by his wife in 1995-2005: Decision Record at [16], [17], [24] and [27]. It simply did not accept that the injuries were caused by RSS supporters or that the applicant was a target for them. 44 Fifth, insofar as the applicant cavilled with the weight given to the discrepancy in the applicant's written and oral evidence in relation to his movements after he said he was attacked, the Tribunal plainly accepted the written statements as authentic and there is no evidence that the Tribunal gave less weight to those documents by reason of the "country information". I note that the second of the applicant's written statements did not "correct" the first; it was an expanded version which did not directly address the claim that "[t]hey attacked me. I moved different parts to escape." It is also clear from [14] of the Decision Record that standing alone, the discrepancy would not have been worthy of much weight. Further, the applicant's suggestion that the Tribunal should give "credit" for "correcting" the error in the first statement in the second before the issue was raised with the applicant is clearly misplaced; the Tribunal's assessment of the weight to be given to evidence and any adverse credibility findings are matters par excellence for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J. 45 Sixth, the Tribunal ultimately did not accept the applicant's evidence that the car which hit his wife in 2000 was driven by RSS supporters based on its assessment of the applicant as a witness and the evidence he gave as the basis for identifying the people who attacked him in 2010; the Tribunal is not obliged to accept the applicant's evidence uncritically and in my view the Tribunal's findings were open to it on the material before it. 46 Last, I accept the Minister's submission that the Tribunal was correct to put the issues raised by the anonymous allegation set out at [18] of the Decision Record to the applicant for comment if it would or might form part of the reason for affirming the delegate's decision: Khan v Minister For Immigration and Citizenship (2011) 202 FCR 462. It is also appropriate that the Decision Record sets out both the fact that the Tribunal did put the anonymous allegation to the applicant and the fact of the applicant's denial. I do not accept the applicant's submission that it was simply pejorative to do so. Ground two 47 In relation to the second ground, the applicant said that the Tribunal failed to take account of the "strange co-incidence" that both he and his wife suffered substantial injuries, injuries which the Tribunal accepted had been sustained. The applicant said that the Tribunal ignored the element of the medical report which described his injuries as "poly trauma" because of the colouration of the Tribunal's view of him by the anonymous complaint and the "country information". 48 I accept that Minister's submission that this ground also does not indicate error in the primary judge's decision. In any event, I do not consider that it has substance. 49 The applicant conceded that he did not raise the argument of the "strange co-incidence" with the Tribunal. The Tribunal accepted that the injuries occurred. In particular, it accepted that the applicant's arm was broken, his face was stabbed above the left eye and his leg was cut; that is, that the applicant suffered "poly trauma": Decision Record at [8], [17]. In light of the fact that the injuries to the applicant and his wife are said to have occurred 10 years apart, the argument now raised is not compelling nor do I consider that it reveals any failure by the Tribunal in the performance of its review task. Based on the Tribunal's assessment of the applicant's credibility, which for reasons previously given I do not accept was coloured by "country information" or in any inappropriate way by the anonymous complaint, the Tribunal did not accept that RSS supporters caused the injuries to either the applicant or his wife. In my view that factual finding was open to the Tribunal for the reasons which it gave and this ground invites impermissible merits review. Other matters 50 The affidavit affirmed on 24 April 2015 which accompanied the applicant's application for leave said: … 3. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. 4. The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A. 5. The Respondent did not raise/or put to me in writing parts of the adverse decision for me to comment in writing. 51 Since that affidavit was filed, the applicant has become represented by Mr Newman. Mr Newman did not pursue any of these matters at the hearing and I therefore take them to be abandoned. I note that the affidavit raises matters considered by the primary judge and having considered both the Decision Record and her Honour's reasons, I do not perceive error in her approach on these matters. Conclusion and disposition 52 The Minister submitted that the proposed grounds of appeal have insufficient prospects of success to justify a grant of leave to allow an appeal to proceed. For the reasons given, I accept the Minister's submission. I will dismiss the application and order that the applicant pay the Minister's costs as agreed or taxed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 20 August 2015