FEDERAL COURT OF AUSTRALIA MZAFS v Minister for Immigration and Border Protection [2016] FCA 1449 Appeal from: MZAFS & Ors v Minister for Immigration and Border Protection & Anor (No. 2) [2016] FCCA 1872 File number: VID 954 of 2016 Judge: DAVIES J Date of judgment: 1 December 2016 Catchwords: MIGRATION – appeal of dismissal of application for review – whether adverse credit finding was open on the evidence before the Tribunal – whether obligation on the Tribunal to pursue inquiries of its own – whether denial of procedural fairness Legislation: Migration Act 1958 (Cth) Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Date of hearing: 23 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: G A Hill Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 954 of 2016 BETWEEN: MZAFS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 1 december 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the First Respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: 1 The appellant has appealed the dismissal by the Federal Circuit Court of Australia ("FCC") of his application for review of a decision of the Refuge Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). The Tribunal had affirmed the decision of a delegate of the first respondent ("the Minister"), not to grant the appellant a Protection (Class XA) Visa. 2 The appellant is a citizen of China. He claimed to have a well-founded fear of persecution in China because of his political opinions or imputed political opinions. He claimed further that he left his country because he pursued democracy and freedom in China but the ruling Government tortured him and he did not have any human rights in China. The appellant claimed he had to leave his country because of safety concerns and for the pursuit of freedom and if he returns to China he will lose his freedom. He claimed that he cannot get protection from the harm he fears in China. 3 The Tribunal was not satisfied on the evidence before it that the appellant has a well-founded fear of persecution in China for a Convention reason. The Tribunal found that the appellant had not given truthful evidence to the Tribunal about his claims and, in the Tribunal's view, there was no plausible evidence before it that the appellant had suffered persecution in China, or that there is a real chance of the appellant suffering persecution from authorities in China because of his political opinion or imputed political opinion or for any other Convention reason, either now or in the reasonably foreseeable future if he returns to China. 4 The appellant sought judicial review of the decision of the Tribunal. Five grounds were raised, namely: 1. I don't think DIBT and RRT's decision are fair and reasonable as they failed to carefully consider my political opinion against Chinese government which is exclusively described in my claim. My political motion was ignored, especially my actual involvement of the political activities in China. 2. RRT failed to consider and invest the truth of my statement in particular the substantial evidence and documents provided to the tribunal and judge my case simply by general country information which is unreasonably covers my situation. 3. RRT failed to prudently consider the persecution, oppression and social bias upon me and my business I have experienced in origin, and potential risk due to my background, and implication to my family members if we return to origin. 4. RRT failed to consider the statements, explanation, and evidence provided by my family members, in particular my son's testimony who is currently in his school age in supporting my claim as a whole. 5. RRT unfairly doubt about the truthfulness of my claim, generating no good accounts for the investigating the facts I have given. Tribunal's subjects my persecution of our Conventional grounds is unfair and unreasonable as I was, and is the person who meets the criteria for protection according to the Convention. 5 A supplementary statement filed by the appellant raised additional matters about the conduct of the hearing by the Tribunal, amounting essentially to a claim of a denial of procedural fairness and a claim of apprehended bias, which the FCC also considered. 6 The FCC found no jurisdictional error in the Tribunal's reasoning and no substance in either the claim that the Tribunal had failed to give the appellant a full and proper opportunity to present his case or the claim of apprehended bias. 7 The appellant has appealed the decision of the FCC. The Notice of Appeal contained three grounds as follows: 1. I am a Chinese citizen and currently separated with my wife and son. I will be facing persecution by Chinese government due to my political prospect. 2. AAT unfairly doubt about the truthfulness of my claim, generating no good accounts for the investigating the facts I have given. Tribunal's subjects my persecution of out Conventional grounds is unfair and unreasonable as I was, and is the person who meets the criteria for protection according to the Convention. 3. I have never received any correspondence via email or post from Federal Circuit Court in regards to the outcome of my appeal. I have personally approached to the court on 12th August 2016 and no one was able to provide me an explanation why the correspondence was not properly delivered to me. I believe the court failed to send me the decision. There is procedural error occurred. 8 Ground 1 and ground 3 are not proper grounds of appeal. Ground 1 does not contend any error by the FCC or the Tribunal but merely repeats the appellant's claim that he will be facing persecution by the Chinese Government because of his political opinions. Ground 3 does not raise any error that could affect the decision of the FCC. In any event, the appeal was brought within time and the appellant has not suffered any substantial prejudice as a result of any failure to receive the decision of the FCC in a timely manner. 9 Ground 2 raises Ground 5 of the application for review. The FCC found no legal error in the Tribunal's rejection of the appellant's claims as truthful. The appellant plainly disagrees with the Tribunal's finding that he was untruthful but no error of law can be discerned in the reasons of the Tribunal in forming that view. The Tribunal's finding on credibility was a question of fact for it and based on inconsistencies and omissions in the appellant's evidence, which were not of a trivial nature, and the appellant's inability to provide a reasonable explanation as to why he waited a year after arriving in Australia to make application for a protection visa. The Tribunal's reasons disclose that there was a logical and probative basis for the adverse finding and it cannot be said that the credit finding lacked an intelligible justification. The FCC was correct to hold that the Tribunal's adverse credit finding was open on the evidence before it and no jurisdictional error attends that credit finding: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. The ground in substance was an attempt to revisit the merits, which it is not open for this Court to do. 10 The FCC was also correct to reject that the appellant's contention that the Tribunal should have investigated for itself the truthfulness of the appellant's claim that the authorities in China had closed his factory. The Tribunal was not under any duty to make out the appellant's case for him and there was no obligation on the Tribunal to pursue inquires of its own to satisfy itself that the appellant's claims were reliable either by sending someone to China or conducting internet searches of the appellant and his wife, as the appellant requested of the Tribunal. 11 In oral submissions, the appellant also argued that the Tribunal should have given him the opportunity to put further material before the Tribunal in support of his case before rejecting his evidence as untruthful. I do not accept that contention. Three hearings were conducted by the Tribunal and the transcript of those hearings discloses that the appellant was put on notice of the Tribunal's concerns about the truthfulness of his claims, and given the full opportunity to put on his evidence in support of his claims and present arguments. There was no denial of procedural fairness. 12 Accordingly, the appeal must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 1 December 2016