Case: W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703
Outcome: applied
Magistrate treated this as a complaint that the Tribunal placed too much weight on the findings of fact upon which it based its conclusion that the applicant's evidence was not credible. I think that is the correct complexion to put upon this ground. But again it is not a procedural fairness complaint. In any event, the Magistrate rejected it because the Tribunal's findings on which its conclusion on credibility were based were open to it on the evidence. After referring to a number of authorities on findings as to credibility, his Honour said at [28] that the Tribunal had not failed to use, or had palpably misused, the advantage it had of having heard and seen the applicant give evidence. Nor had it acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Nor were the probabilities strongly against the findings it made in rejecting the applicant's evidence. See W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] . In connection with this ground the applicant asserts a breach by the Tribunal of s 414 of the Migration Act 1958 in not assessing her claims in the manner the section requires. Section 414(1) requires the Tribunal to review a valid application for review of an RRT-reviewable decision. The Magistrate correctly rejected this complaint. He said at [49]-[50]: the RRT performed its duty under s 414 to consider the claims made by the applicant and the evidence before it. The RRT considered the evidence of the applicant given to the Department and the oral evidence given at the hearing. The RRT considered and accepted her claim that, as a Hindu, the applicant genuinely cares about the welfare of cows and may have assisted her grandfather in this regard. However, the Tribunal rejected the rest of the applicant's claims. Those findings were open to it on the evidence before it ... This ground is an attempt to review factual findings by the Tribunal which is not open to a Court conducting judicial review. No error has been shown in the Magistrate's rejection of reliance on s 414. The Tribunal carefully considered her claims and the evidence she provided in support of them. There is no doubt that it "reviewed" the Tribunal's decision as required by s 414. No error has been shown in the Magistrate's rejection of ground 1.2. There is no prospect that the applicant would establish this ground on an appeal. Ground 2 is that the Magistrate was in error in not determining that the Tribunal acted in a manifestly unreasonable manner when dealing with the applicant's claims because of its failure to consider them in accordance with Article 1(A)(2) of the Refugee Convention and "ignoring the aspect of persecution or serious harm in terms of s 91R of the Act". There is no substance in these complaints. The Magistrate pointed out, correctly, that at the beginning of its reasons the Tribunal set out the relevant law, the definition of refugee in Article 1(A)(2), and key components of the definition. It then dealt with the applicant's claims in accordance with the relevant criteria before concluding at [64] that it was not satisfied that she is a person to whom Australia has protection obligations.