AEY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 562
•7 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 562
File number: MLG 77 of 2017 Judgment of: JUDGE FORBES Date of judgment: 7 July 2023 Catchwords: MIGRATION – judicial review – protection visa and claimed fear of harm – application for review of decision of administrative appeals tribunal – whether tribunal erred in interpreting or applying the real chance and real risk tests – whether tribunal required to consider possibility of harm despite factual findings – whether tribunal failed to consider relevant matters – whether findings of tribunal legally unreasonable Legislation: Migration Act 1958 (Cth), s 5, 36, 65 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DLC17 v Minister for Immigration and Border Protection [2018] FCA 1361
Minister for Home Affairs v Omar [2012] FCAFC 188
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12
Plaintiff M1/21 v Minister for Home Affairs [2022] HCA 17
Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510
Division: Division 2 Family Law Number of paragraphs: 119 Date of hearing: 24 May 2022 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Mano Associates Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 77 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
7 july 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 13 January 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 24 May 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this matter the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 16 December 2016. The Tribunal affirmed a decision made by the delegate of the Minister not to grant the applicant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
For the reasons set out below, I have determined that the Tribunal’s decision was not affected by error.
BACKGROUND
The following background is derived from the detailed outlines of submission filed by the parties prior to the Hearing and from the materials contained in the court book. Unless otherwise stated, the following matters are common ground.
The applicant, who was a citizen of Sri Lanka, arrived in Australia on 9 August 2012 as an unauthorised maritime. He initially departed legally by air from Sri Lanka to Malaysia, then travelled by boat to Indonesia and then to Australia.
On 14 October 2012 the applicant took part in an arrival entry interview[1].
[1] Court Book (‘CB’) p 1 – 19
On 19 December 2012 the applicant applied for the protection visa. His claims for protection were set out in a statutory declaration which accompanied the application. In summary, the applicant claimed to have a well-founded fear of persecution on account of being a young Tamil from Jaffna, having experienced harassment from the authorities in Sri Lanka, being imputed with a political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE), being a supporter of the Tamil National Alliance (TNA) due to his relationship with a politically active classmate, being a failed asylum seeker and for having left Sri Lanka illegally[2].
[2] CB 77 – 79
On 19 February 2013 the applicant’s representative re-sent the original visa application to the Department of Immigration and Citizenship (the Department).
On 23 September 2013 the applicant participated in an interview with the delegate[3]. Following the interview, the applicant’s representative provided the delegate with further submissions and identity documents[4].
[3] CB 97 – 99
[4] CB 100 – 125
On 14 February 2014, the delegate of the Minister refused the visa application. The delegate accepted some but not all of the applicant’s claimed history and found that some aspects of his claims were not credible. The delegate did not accept that the applicant was a person of interest to the Sri Lankan authorities, nor was he at risk as a Tamil, as an illegal emigrant or as a failed asylum seeker. The delegate was not satisfied that the applicant had a profile that would indicate he would face a real chance of serious harm if he returned to Sri Lanka.
Application to the Tribunal
On 26 February 2014 the applicant lodged an application for merits review of the Minister’s decision with the (then) Refugee Review Tribunal[5].
[5] CB 154 – 160
On 8 December 2015 the applicant’s representative provided the Tribunal with various documents, including a Statutory Declaration[6] from the applicant dated 8 December 2015 and a letter[7] from the applicant’s Accredited Mental Health Social Worker, Mr Peter Carlon, dated 4 December 2015.
[6] CB 181 – 184
[7] CB 191 – 193
On 3 February 2016 the applicant’s representative provided the Tribunal with written submissions in support of the applicant’s claims[8].
[8] CB 211 – 234
The applicant appeared before the Tribunal on 21 March 2016 with his representative and social worker.[9] However, the hearing was adjourned to allow the applicant’s representative to provide further submissions and a new statutory declaration.
[9] CB 250 – 251
On 2 May 2016 the applicant’s representative provided the Tribunal with further written submissions and a new statutory declaration[10] from the applicant dated 29 April 2016 which raised additional claims including that he had been a member of the Jaffna District Student Federation which he said was aligned with the LTTE. An updated letter from Peter Carlon[11] dated 19 August 2016 was also provided to the Tribunal.
[10] CB 262 – 274
[11] CB 293 – 294
The applicant appeared before the Tribunal on 25 August 2016 (second hearing) and 20 October 2016 (third hearing) to give evidence and present arguments. The hearings were conducted with the assistance of an interpreter in the Tamil and English languages.
On 14 November 2016 the applicant’s representative provided the Tribunal with post-hearing submissions[12].
[12] CB 321
Tribunal decision and reasons
On 16 December 2016 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[13].
[13] CB 358 – 384
The Tribunal noted that the applicant’s claims were made in various documents including his protection visa application on 19 December 2012, a departmental interview he attended on 23 September 2013, his statutory declarations dated 8 December 2015 and 29 April 2016, in submissions from the applicant’s adviser to the Department and the Tribunal and at the three Tribunal hearings in March, August and October 2016.
Based on the evidence provided by the applicant prior to the hearing, at the various hearings and subsequently, the Tribunal found that the applicant would not face a real chance of serious harm by reason of his claims nor a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka. The Tribunal found that the applicant did not satisfy the refugee protection provisions of the Act nor the complementary protection obligations contained in s 36(2)(aa).[14]
[14] CB p 384
The Tribunal’s reasons are comprehensive and comprise 105 paragraphs over 27 pages. It is unnecessary to rehearse every finding made by the Tribunal in these reasons, suffice to say that I have read the decision record which commences at [358] of the court book carefully.
The Tribunal accepted some of the applicant’s claimed history but rejected other aspects of his claims. The reasons reveal that the Tribunal made extensive credibility findings and found that the applicant was not a credible witness.
The Tribunal accepted that the applicant was born in Jaffna and that he lived in Manipay. It accepted on the basis of country information that there had been occasions in the past, during the war, when the applicant and his family were displaced and lived in different cities. It accepted as plausible that the applicant’s home may have been randomly inspected and his parents questioned after they returned to their home in Manipay in 1997.
It also accepted that the applicant relocated to Kandy in 2006 where it was plausible that he and his family were looked at suspiciously and were required to register with the authorities[15]. Moreover, the Tribunal accepted that in 2008 the applicant, his father and brother may have been arrested, detained and fingerprinted[16]. It accepted that the applicant moved to Colombo in 2009 and was subject to further registration, and had been detained for some hours in 2011[17]. The Tribunal also accepted that the applicant had moved to Point Pedro in 2011 and was again required to register with the police[18].
[15] CB 370 at [47]
[16] CB 370 at [48]
[17] CB 371, [51] – [56]
[18] CB 371 – 372, [56] – [57]
The Tribunal accepted that the applicant may have been assaulted by an army officer in 2004[19]. It accepted that the applicant may have been pushed off his bike and kicked by the officer after being called to stop at a checkpoint which he had to pass through on his way to and from school. However, the Tribunal did not accept that the applicant had been hit with the butt of a gun and found that he had embellished this aspect of his evidence in an effort to bolster the seriousness of the incident.
[19] CB 365 at [29]-[30]
Indeed, the Tribunal found that the applicant was not a credible witness and it rejected many of the applicant’s substantive claims.
The Tribunal rejected the applicant’s claim that the Criminal Investigation Department (CID) were or are going to his family home asking about his whereabouts, and the whereabouts of his brother, since his departure from Sri Lanka. It observed that the applicant made this claim for the first time in his statutory declaration dated 8 December 2015, that his evidence surrounding this particular claim was vague and that if regular enquiries were in fact being made about him over a long period of time, the applicant would have raised this claim before the delegate.[20]
[20] CB 374 at [66]
The Tribunal did not accept the applicant’s alleged association with the LTTE[21] and found that the applicant’s claims of having assisted the LTTE or being a suspected member or supporter of the LTTE had changed and evolved over time. For example, at one point the applicant had claimed that the LTTE had visited his school and forced students to assist the organisation in events or compelled them to join. Later, however, he claimed that he had voluntarily assisted the LTTE when they came to his school and that he put himself forward to assist[22].
[21] CB 365 at [31]
[22] CB 365 at [31]-[33]
The Tribunal did not accept that the applicant was observed by the army, the CID or anti-LTTE Tamils in the community engaging in activities with the LTTE.
The Tribunal did not accept the applicant’s claims, also made for the first time during the hearings, that he had been subjected to violent interrogations in Manipay, that many enquiries were made of him during which he was questioned and hit or that villages informed on him. The Tribunal found the applicant’s evidence in the hearing about these alleged enquiries to be vague and confusing and lacking in credibility.
Similarly, the Tribunal did not accept that the applicant had taken part in the Jaffna District Student Federation or that it was aligned as the political wing of the LTTE[23], noting again that the first time this claim was raised by the applicant was during the hearing. The applicant initially alleged a casual involvement with a student organisation of a different name, but in a later resumed hearing before the Tribunal he claimed to have been one of 4 or 5 people in the very close inner circle of the Jaffna District Student Federation and to have been in close contact with the LTTE. The Tribunal found that the applicant had provided conflicting evidence regarding how he allegedly became associated with the Federation and did not accept that the applicant was a student leader, as he claimed, or that he had spoken at LTTE propaganda meetings about the aims and objectives of the Student Federation.
[23] CB 366 at [35]
The Tribunal did not accept that the applicant was a member of the Federation and found that his evidence in the hearings regarding his political views and activities directly contradicted his initial evidence to the Department that he was not interested in politics.
The Tribunal also identified the significant delay in the applicant raising this central claim and noted that it had only been raised after the delegate had refused his application for protection. The Tribunal did not accept that the applicant had delayed disclosure of his claimed links with the LTTE due to fears that it might result in his indefinite detention in Australia, noting that the applicant had been legally represented throughout and would have understood the importance of providing accurate information about his past experiences in Sri Lanka.
In assessing the applicant’s claim that his friendship with a candidate of the TNA would result in him being targeted on his return to Sri Lanka, the Tribunal did not accept the applicant’s fear that people who opposed his friend will create problems for him on his return to Sri Lanka[24]. Additionally, the Tribunal did not accept that the applicant relocated to Kandy because of problems or difficulties he experienced by participating in the LTTE or being associated with the Jaffna District Student Federation[25].
[24] CB 373 at [63]
[25] CB 369 at [46]
The Tribunal did not accept that the applicant had received threats from the CID, the police or other militant groups on suspicion of being a member of the LTTE.
In light of those findings, the Tribunal found that the applicant would not face a real chance of serious harm for reason of his membership to the particular social groups as claimed or due to any real or imputed political opinion in support of the LTTE or TNA[26].
[26] CB 376 at [71]
The Tribunal also considered the applicant’s claim that he will be targeted by the authorities by reason of his Tamil ethnicity and his profile as a young Tamil man originating from the Northern Province or from Jaffna[27]. The Tribunal accepted as plausible that the applicant and his family may have been looked at suspiciously while living in Kandy between 2006 and 2009. It also accepted that the applicant may have been registered and that he and his family may been required to attend the police station. The Tribunal also accepted that in 2008 the applicant, his father and brother may have been arrested and taken to the police station where they were kept in the cell overnight and questioned about their residence in Kandy, but then released without charge.
[27] CB 376 at [73] – [81]
However, the Tribunal found, based on country information, the applicant did not fall into a risk profile which would put him at risk of persecution from the Sri Lankan state authorities and/or parliamentary groups[28]. Accordingly, the Tribunal found that the applicant would not face a real chance of serious harm on account of his Tamil ethnicity and/or his profile as a young Tamil male from the north of Sri Lanka[29].
[28] CB 379 at [81]
[29] CB 379 at [81]
In its consideration of the applicant’s claim to fear harm upon return to Sri Lanka on account of being a failed asylum seeker who left the country illegally, the Tribunal found that the applicant did not depart Sri Lanka illegally as he left the country on a genuine passport in his own name and a visa allowing him to enter Malaysia[30]. Therefore, the Tribunal did not accept that the applicant faced a real chance of serious harm for this reason.
[30] CB 379 at [83]
Whilst it accepted that the applicant may be subjected to questioning at the airport on arrival in Sri Lanka, the Tribunal found that, based on the applicant’s profile, he would be released by the authorities without further interest. The Tribunal did not accept that the applicant would face a real chance of being detained once he passes through the airport or that he would be questioned once he goes back to his home area.[31]
[31] CB 380 at [88]
Further, the Tribunal did not accept that any questioning the applicant might be subjected to at the airport on arrival in Sri Lanka would result in serious harm to the applicant due to his anxiety and depression[32]. The Tribunal took into account the applicant’s mental health issues in making that assessment. Relying on country information, the Tribunal noted that the applicant would be able to access free health care for his mental health issues in Sri Lanka, if necessary[33].
[32] CB 380 at [88]
[33] CB 381 at [90]
Considering the applicant’s claims individually, and cumulatively, the Tribunal concluded that the applicant’s fear of persecution is not well-founded and that he did not meet the protection requirements under the Refugee convention.[34]
[34] CB 381 at [91]
In relation to complementary protection, the Tribunal did not accept that the applicant would face significant harm on account of any real or imputed political opinion, his friendship with a TNA candidate, his ethnicity, his status as a failed asylum seeker, for illegally departing Sri Lanka, or for his mental health issues. The Tribunal did not accept that the applicant would face significant harm.
Application for judicial review
On 13 January 2017 the applicant applied to this Court for judicial review of the Tribunal’s decision and initially identified four grounds of review.
On 29 April 2022 the applicant filed an amended application. The amended application contained three grounds for review as follows:
1.The Second Respondent ("the Tribunal") fell into jurisdictional error in interpreting or applying the law.
Particulars
(a)The Tribunal erred in interpreting or applying the term "real chance" in section 5J(1)(b) of the Act or "real risk" in section 36(2)(aa) of the Act shown by its absolute rejection of the claim that the Applicant had any involvement at all with the LTTE, whether voluntarily or not, and its rejection of a real chance that he may suffer harm because of the possibility that he may be suspected of some involvement with the LTTE.
(b)The Tribunal erred in interpreting or applying the term "real chance" in section 5J(1)(b) of the Act or "real risk" in section 36(2)(aa) of the Act, shown by its rejection of the claim that the CID or other authorities of Sri Lanka had continued to visit the Applicant's parents' house seeking information about him or his brother.
(c)The Tribunal erred in interpreting or applying the term "real chance" in section 5J(1)(b) of the Act or "real risk" in section 36(2)(aa) of the Act, shown by not finding that the Applicant, with his particular vulnerabilities, was at risk of persecution or significant harm in even a brief period in detention or in prison on his return, given the material before it relating to abuse of human rights and torture.
2.The Tribunal fell into jurisdictional error in failing to consider relevant considerations.
Particulars
(a)The Tribunal failed to consider with an actual intellectual engagement whether the Applicant, with his particular vulnerabilities, had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka, whether he was regarded as an illegal emigrant or an involuntary returnee. This question was squarely raised by the material before it relating to abuse of human rights and torture.
3. The Tribunal fell into jurisdictional error in that it was unreasonable.
Particulars
(a)Further or in the alternative to Particular (a) to Ground 1, the Tribunal was unreasonable in rejecting the claim that the Applicant had any involvement at all with the LTTE, whether voluntarily or not, and that he may even briefly be suspected of some involvement with the LTTE.
(b)Further or in the alternative to Particular (b) to Ground 1, the Tribunal was unreasonable in rejecting the claim that the CID or other authorities of Sri Lanka had continued to visit the Applicant's family's home seeking information about him or his brother.
(c)Further or in the alternative to Particular (c) to Ground 1 and Particular (a) to Ground 2, it was not reasonable for the Tribunal not to find that the Applicant, with his particular vulnerabilities, was at risk of persecution or significant harm in detention or in prison on his return, given the material before it relating to abuse of human rights and torture.
The applicant filed an outline of submissions on 29 April 2022 and the Minister filed an outline of submissions on 17 May 2022. A court book was also filed by the Minister on 2 August 2017 in accordance with court orders.
HEARING
The matter came before me for final hearing on 24 May 2022. Mr Krohn of counsel appeared for the applicant and the Minister was represented by Mr Barrington of counsel.
Counsel for each of the parties developed their written outlines orally. In relation to the grounds of review, counsel for the applicant conceded that grounds one and three are related in the sense that the same material is used as the basis to argue that the Tribunal fell into different species of jurisdictional error. Each counsel took the practical approach of acknowledging that ground 3, which had the same particulars as ground one, was a reformulation of the same substantive error, albeit cast as legal unreasonableness. For that reason, the substance of the oral submissions were directed to ground one.
Ground one
By ground one the applicant contends that the Tribunal misapplied the real chance and real risk tests in determining whether the applicant met the criteria in section 36(2)(a) or 36(2)(aa). The applicant contends that the intentions of sections 36(2)(a) and 36(2)(aa) is to give protection against serious or significant harm such that, even if the Tribunal has doubt about whether a person is at risk, Parliament requires the Tribunal to find that the applicant meets the requirements for protection if there is a small but real chance of suffering such harm.
There are three particulars to this first ground of review, each of which pivots on the alleged failure by the Tribunal to correctly apply the requisite statutory tests.
Particular (a)
The applicant contends that the Tribunal erred in its interpretation or application of the terms “real chance” or “real risk” by rejecting the applicant’s claim that he had any involvement with the LTTE, whether voluntary or otherwise, and rejecting the real chance that he may suffer harm because of the possibility that he may be suspected of some involvement with the LTTE.
The applicant accepts that it was reasonable for the Tribunal to have had questions about the nature and willingness of the applicant’s support for the LTTE given variations in his evidence about the approaches of the LTTE to recruitment in his area in 2002 and variations in his evidence about whether his involvement was forced or voluntary. However, the applicant submits that it was not reasonably open to the Tribunal to totally reject the possibility that the applicant had some involvement with the LTTE, and therefore a “real chance” of being identified or suspected as a supporter of the LTTE, given the Tribunal’s acceptance of the dominance and activity of the organisation in the area at the time. The applicant submits that the Tribunal ought to have at least considered the possibility that some of his claims might have been true.
The applicant submits that the Tribunal accepted that an involvement or suspected involvement with the LTTE may have led to a real chance of suffering persecution or significant harm. Accordingly, it was necessary for the Tribunal to have considered the risk of harm to the applicant if he had given “even some support” to the LTTE.
The applicant submits that the Tribunal failed to properly countenance the risks associated with the applicant’s claim that it was simply dangerous per se that the LTTE were presented in the area in which the applicant resided and that they were trying to recruit. Moreover, the applicant submits that against the background of accepted evidence that he had been detained by authorities in the past and questioned and fingerprinted, that he and his family had been looked at suspiciously by authorities in Kandy and were required to be registered, that he would return to Sri Lanka as a failed asylum seeker and an involuntary returnee after years of absence, there is a real chance that the applicant would be identified or suspected as a supporter of the LTTE. The applicant contends that it was simply not open to the Tribunal to have rejected the possibility that the applicant may have had some involvement with the LTTE, or some perception of involvement[35], such as to result in a real chance of suffering harm.
[35] Applicant's written outline of submissions (AS) at [26]
Ultimately, the applicant submits that in light of all of the evidence and findings, there would have been a sufficient basis of connection, in the minds of the authorities, between the applicant and the LTTE to give rise to a suspicion about his involvement with the LTTE. It is submitted that the Tribunal erred in totally rejecting the applicant’s claim of involvement with the LTTE where the possibility of such involvement could not be regarded as remote or far-fetched. The applicant submits that even a small chance of serious or significant harm arising from the applicant’s involvement or perceived involvement with the LTTE is sufficiently significant to be a “real chance” and that it was simply not open to the Tribunal, correctly applying the legal test, to have come to the conclusion that the applicant faced no real chance of harm.
The Minister, on the other hand, submits that the Tribunal was faced with inconsistent or conflicting evidence about the applicant’s involvement in the LTTE and says that it was plainly open to the Tribunal to be concerned about the stark differences in the evidence. In this context, the Minister points to the applicant’s initial evidence that he had been “forced”, “compelled” or “required” to assist the LTTE when they came to his school and that doing so was “mandatory” or “compulsory”. This is to be contrasted with the applicant’s later claims during the Tribunal hearings that he had “wanted to join" the LTTE, that he had “voluntarily assisted” the organisation and had put himself forward to do so.
The Minister submits that when faced with such conflicting evidence the Tribunal was not required to make a binary choice between whether the applicant had been compelled to assist the LTTE or did so voluntarily. Rather, the Minister submits that it was equally open to the Tribunal to reject the applicant’s claim that he had any involvement with the LTTE at all.
Furthermore, the Minister submits that in advancing this particular ground of review the applicant incorrectly imputes to the Tribunal a requirement to consider the possibility that it might have been wrong about its finding that the applicant was not involved with the LTTE - the so-called “what if I am wrong" test. The Minister submits that in circumstances where the Tribunal did not harbour any real doubt about the veracity of its findings of fact (i.e. the rejection of the applicant’s claim to have been involved with the LTTE), the Tribunal was not required to consider the possibility that one of the versions proffered by the applicant might have occurred or to apply the real chance test to that possibility.
The Minister submits that the Tribunal’s reasons comprised orthodox findings of fact and that the applicant’s submissions in relation to particular (a) rise little higher than merits review. The Minister submits that the finding that the applicant was not involved with the LTTE was plainly open to the Tribunal, particularly having regard to the conflicting evidence and the Tribunal’s finding that the applicant was, in significant respects, not a credible witness. The Minister also submits that the Tribunal’s findings were expressed in terms which showed no lack of conviction or confidence in the conclusions reached.
Particular (b)
In relation to this particular, the applicant submits that the Tribunal erred in rejecting the applicant’s claim that after leaving Sri Lanka the authorities had continued to visit his parents’ home seeking information about him and his brother. He submitted that in doing so the Tribunal thereby failed to countenance the real risk or real chance that the applicant might suffer harm.
The applicant’s submission is premised on the relatively straightforward assertion that the Tribunal had no basis to reject this claim. The applicant submits that if the Tribunal had correctly applied the real chance test (ground one) and acted in a way that was not legally unreasonable (ground 3), it could not reject the claim without a logically probative foundation for doing so. The applicant submits that in light of all the evidence and on a fair reading of its reasons the Tribunal proffered no proper or lawful basis to reject the claim.
The applicant concedes that his claim in relation to authorities making enquiries about him was not included in his original statutory declaration, although he did state that the authorities had been making enquiries about his brother. In that context, the applicant submits that the more recent revelation that the authorities had also been making enquiries about him should not be seen as a new claim but rather a development or elaboration of his earlier claim relating to his brother.
The applicant also properly concedes that the Tribunal is not required to uncritically accept any claim or submission which is laid before it, but submits that where claims are advanced in statutory declarations or on oath or affirmation, they should be accorded a measure of weight. The applicant also accepts that findings of fact are a matter for the Tribunal, but submits that rejection of a claim must have a substantive basis. Here the applicant reiterates that the Tribunal did accept many of the applicant’s claims about his history and that adverse findings of credit are insufficient basis for rejection of this particular claim.
Accordingly, it is submitted that it was not open to the Tribunal, correctly interpreting and applying the terms “real chance” of persecution and “real risk" of significant harm, to reject the claim that the authorities were continuing to search for the applicant, and that there was consequently a real chance - even if small - that he may suffer persecution or significant harm as a result.
The Minister, in response, submits that the applicant’s argument is based on the false premise that the Tribunal did not have a proper basis for not accepting the claim. The Minister submits that the claim was in fact carefully considered by the Tribunal[36] and rejected by it for two reasons, both of which are logically probative bases.
[36] Tribunal reasons at [66], CB 374
First, the Minister notes that the Tribunal expressed concern that the applicant had not made his claim until after the delegate’s decision refusing his application for the protection visa. The Tribunal had difficulty accepting that the applicant would not have raised the claim before December 2015 (approximately 3 years after his original protection visa application) and did not accept his explanation that the details did not come to his mind at the time. The fact that the applicant had made an earlier similar claim that the authorities had been making enquiries about his brother undermined his later claim that the authorities were also making enquiries about him after he departed the country. In the circumstances, the Tribunal did not accept that the applicant had merely overlooked to mention that the authorities are also looking for him.
Secondly, the Tribunal “found the applicant’s evidence to be vague as to when and how often these alleged visits to both his uncle and his family’s home had occurred". The Minister submits that this is a consideration relevant to weight and that it is a matter for the Tribunal to make findings of fact. Consistent with the concession properly made by the applicant, the Minister reiterates that the Tribunal is not required to uncritically accept claims or evidence or submissions and it is for the Tribunal to assess and weigh the evidence before it. The Minister submits that the rejection of a claim due to a paucity of evidence or implausibility[37] having regard to uncertainty, vagueness, inconsistency or delay[38] is logical and reasonable.
[37] Reasons at [66]
[38] Reasons at [67]
Particular (c)
The applicant also submits that the Tribunal erred in interpreting or applying the term “real chance” in s 5J(1)(b) of the Act or “real risk” in s 36(2)(aa) of the Act by not finding that the applicant, with his particular vulnerabilities, was at risk of persecution or significant harm, in even a brief period of detention or imprisonment on his return, given the compendious material before the Tribunal relating to abuse of human rights and torture in Sri Lanka.
The applicant submits that there was weighty evidence and material before the Tribunal which ought to have persuaded it as to the real chance or real risk that the applicant would suffer harm, particularly having regard to his mental health issues and psychological vulnerabilities. That evidence and material included the applicant’s evidence, his submissions, the findings of the Tribunal about past detentions and mistreatment suffered by the applicant and swathes of country information from a range of independent sources such as the US Department of State, Amnesty International, the International Crisis Group, submissions to the United Nations Human Rights Committee, the International Truth and Justice Project and others. It is submitted that the material comprised a grave and relevant set of reports which demonstrated that after the end of the war in 2009, and the change of government in 2015, there existed an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences.
The applicant submits that the Tribunal erred in finding, based on the country information, that the applicant would only be at risk of harm if he had a serious LTTE profile - which the Tribunal found he did not. The applicant submits that the thrust of the country information, none of which was expressly rejected, actually reveals that instances of torture and repression in Sri Lanka are widespread and systematic and present a more generalised risk to any person who is held in detention, even briefly. To that end, the applicant contended that even a short period of detention on his re-entry to Sri Lanka would expose him to the serious and systemic risks described in the country information, to which he would be particularly susceptible due to his psychological vulnerability.
While acknowledging that the Tribunal accepted some of the applicant’s claims[39], the applicant’s principal complaint is that the Tribunal failed to consider the whole of the material with an actual intellectual engagement. This complaint also engages ground two of the review grounds.
[39] AS at [37]
The applicant submits that if the Tribunal had done so, the question of whether the applicant had a “real chance” of suffering persecution or significant harm by human rights abuses, torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, would have been properly informed and a different conclusion would have been reached. It is submitted that as a result of its failure to intellectually engage with the material, the Tribunal failed to properly consider the basis for the applicant’s fears of persecution and harm as squarely raised by him in his evidence and submissions.
Accordingly, it is submitted that it was not open to the Tribunal, correctly interpreting the term “real chance” in the Act, to conclude that the applicant was not a refugee under s36(2)(a) and that he did not meet the requirements for complementary protection under s 36(2)(aa). The applicant submits that the failure of the Tribunal to consider the material with an actual intellectual engagement leads to the necessary inference that it did not properly apply the real chance test or that it engaged in legal unreasonableness by not grappling with the question it was required to decide (a submissions also advanced in relation to review ground three).
The Minister submits that this particular is based on the false premise that the applicant would be detained or imprisoned upon his return, pointing to paragraph 87 of the Tribunal’s reasons where it found:
“Taking into consideration the applicant’s profile, the Tribunal does not accept that the applicant faces a real chance of being detained once he passes through the airport…”
The Minister submits that the country information dealing with detention and imprisonment does not inform risk assessment in the present case because the Tribunal found that there was no real chance that the applicant would be detained once he passed through the airport or that he would be questioned once he returns to his home area.
In relation to the issue of airport screening, the Tribunal accepted that returnees may be kept at the airport for some hours while they are questioned and their travel documents and identity information is verified. However, based on DFAT country information, the Tribunal concluded that returnees are treated according to standard procedures and that they are not subjected to mistreatment during processing at the airport.
Accordingly, because the underlying factual premise of the applicant’s submission was rejected, the Minister submits that the Tribunal was not required to consider the risks that the applicant might face in detention. The Tribunal did not accept that the applicant would be regarded as an illegal emigrant or that he would be imputed with a pro-LTTE political opinion upon his return. At [70] of its reasons the Tribunal did not accept that the applicant was of any particular or continuing interest to the authorities in Sri Lanka as either a member or supporter, or suspected member or supporter of the LTTE.
The Minister submits, in any event, that the Tribunal did engage with the applicant’s claim and the materials and submissions advanced in support of it and brought its mind to bear on those matters, as is evidenced by a fair reading of the Tribunal’s reasons from paragraphs [83]-[87].
Consideration of ground one
The central theme of this ground is the asserted failure of the Tribunal to properly interpret or apply the terms “real chance” in s 5J(1)(b) and “real risk” in s 36(2)(aa), thereby resulting in jurisdictional error.
A non-citizen will have a well-founded fear of persecution for one or more grounds set out in s 5J(1) where there is a “real chance of persecution”. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated at 575 that:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…”
A real chance is one that is not remote or insubstantial or a far-fetched possibility, regardless of whether it is less or more than 50%[40].
[40] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at [12], McHugh J at [20]
In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 a majority of the Full Court of the Federal Court[41] confirmed that, although s 36(2)(aa) uses the words “real risk”, the relevant test in determining whether a non-citizen is entitled to Australia’s protection obligations under the complementary protection regime is according to the “real chance” test.
[41] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [232]-[246] and Besanko and Jagot at [297]
At [22] of its reasons the Tribunal identified that the primary issue in its review was whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the 5 reasons set out in the Refugees Convention for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act. At [5]-[19] the Tribunal set out the relevant legislative framework within which the issues were to be determined. In terms of the principled approach those paragraphs of the reasons do not reveal any error.
The issue then is whether the Tribunal fell into error in its application of the real chance or real risk tests in making the findings which are impugned in particulars (a)-(c) of ground one. In my view the Tribunal did not.
Rejection of the applicant’s involvement with the LTTE
It was open to the Tribunal to reject the applicant’s claim that he was involved with the LTTE. As discussed above, the Tribunal was faced with inconsistent and conflicting evidence about the applicant’s involvement with the organisation; evidence which evolved over time and gave the Tribunal reason for concern. The applicant’s asserted involvement with the LTTE was presented differently at different times during the review process. The Tribunal, as it was entitled to do, found that the applicant was not a credible witness. Some of his claims were accepted, many were not.
Faced with conflicting evidence, the Tribunal was not bound to choose one of the possibilities advanced by the applicant if it was not affirmatively satisfied or actually persuaded that either occurred[42]. Rather, the Tribunal is to reach a state of satisfaction or non-satisfaction reasonably based on the totality of the facts and material before it. If the totality of the evidence does not support the applicant’s asserted involvement with the LTTE, the Tribunal was entitled to find that there was no involvement. In my view that is an exercise in orthodox fact-finding.
[42] Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 at [38] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ
In any event it is not as if the Tribunal reached its finding without careful consideration of the evidence. The very fulsome reasons of the Tribunal disclose that every aspect of the applicant’s claimed involvement with the LTTE was carefully considered[43]. I discern no error in this aspect of the Tribunal’s finding.
[43] Reasons from [31]-[45]
What if the Tribunal was wrong?
The question then arises as to whether the Tribunal was required to consider the possibility that one of the versions proffered by the applicant had occurred, and to apply the real chance test to that possibility. The applicant submits that in the context of the real chance/risk test posed by s 36 of the Act, although the decision-maker might find that alleged past events have not occurred, the chance that they might have occurred could provide a rational foundation for finding that the applicant has a well-founded fear of persecution. Accordingly, was the Tribunal required to consider the possibility that its conclusion regarding the applicant’s involvement with the LTTE might be wrong?
In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:
(a)There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.
(b)In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.
(c)Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.
(d)There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.
(e)Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to “impute” to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To do so would be to engage in merits review.
(f)In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
As to the last of these principles, Justice Sackville in Rajalingam said (at [67]):
… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.
(emphasis added).
It is to be accepted that where the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities and possibilities were against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in the process of considering whether the applicant has a well-founded fear of persecution. Accordingly, the issue here is the degree of confidence the Tribunal had in its findings.
In making findings of fact a Tribunal will invariably have to engage in an assessment and weighing of all the evidence. It is a matter for the Tribunal to evaluate the evidence of the applicant and all the other evidence and material placed before it. Unless there is no evidence to support a claim or the Authority has evidence which enables a positive finding that a claim is false or has been fabricated, Tribunal findings will usually be conveyed in measured language which by inference acknowledges that they are the product of a weighing and assessment process. The “non-acceptance” of a claim or the Authority’s “non-satisfaction” about a claim, after a lengthy discussion about the evidence in favour of and against that claim, is an example of that process. However, “non-acceptance” is not an expression of equivocation and is not relevantly different from a finding that the event or incident did not occur[44] or that the applicant’s claims are not to be believed[45].
[44] See e.g. DLC17 v Minister for Immigration and Border Protection [2018] FCA 1361
[45] Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 at [45] per French J
There is no principle which requires the Tribunal to express its findings in a manner that makes explicit its degree of conviction or confidence that its findings are correct. Absolute certainty or conviction about a finding of fact is rarely expressed emphatically, probably because a decision-maker does not often reach that height of confidence. Furthermore, a Court exercising powers of judicial review should not impute a lack of conviction or confidence to the decision-maker. The question comes down to whether a fair reading of the Tribunal’s reasons as a whole exposes any real doubt about its critical findings of fact. The decision of the Tribunal should not be read over-finely, or with an eye too keenly attuned to the perception of error. A common sense approach as to what the Tribunal was saying is called for[46].
[46] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited in Rajalingam at [67]
In my view, a fair and holistic reading of the Tribunal’s reasons in this case does not permit a conclusion that the Tribunal had a real doubt about the correctness of its findings on the material questions of fact, including in relation to the applicant’s claimed involvement with the LTTE. Accordingly, any failure to consider the possibility that the applicant may have had some involvement with the LTTE does not in the circumstances of this case reveal jurisdictional error.
Authorities asking for the applicant
Similarly, I find no error in the Tribunal’s application of the statutory test in rejecting the applicant’s claim that the Sri Lankan authorities had continued to visit his parents’ house seeking information about him or his brother.
I accept the Ministers’ submission that this aspect of the applicant’s claim was considered by the Tribunal and rejected. It was rejected because the applicant first raised this claim in December 2015, nearly 3 years after his original statutory declaration. The Tribunal did not accept the applicant’s explanation that the details of the claim did not come to his mind earlier in time. The Tribunal also found, unsurprisingly, that the applicant’s evidence was vague.
Contrary to the applicant’s submission, it was open to the Tribunal, correctly interpreting and applying the terms "real chance” of persecution and “real risk" of significant harm to reject the claim that the authorities were continuing to search for the applicant.
In my view there were logical and probative bases upon which the Tribunal was entitled to reject the applicant’s claim. The reasons read as a whole reveal an evident and intelligible justification for the Tribunal’s rejection of the claim and the Tribunal did not engage in legal unreasonableness in doing so.
Risks for the applicant in detention
I also do not accept that the Tribunal erred in its interpretation or application of the “real chance” and “real risk” tests by not finding that the applicant was at risk of persecution or significant harm if detained or imprisoned on his return, even for a brief period.
I am persuaded by the Minister’s submission that the premise of this complaint is flawed. There was no evidence that the applicant would be detained or imprisoned upon his return to Sri Lanka. The findings of the Tribunal where that the applicant would be of little interest to the authorities and that he would not be identified as an LTTE supporter. There is simply no basis for the Tribunal to have concluded that the applicant would be detained or imprisoned and thereby subjected to the risks of torture or other inhumane treatment referred to in the large body of country material which had been submitted on his behalf.
Insofar as the applicant contends that the airport screening process constitutes “detention", it was open to the Tribunal to find that it presented no real risk or real chance of harm. The Tribunal relied upon DFAT reports to the effect that “detainees are not subject to mistreatment during the processing at the airport”. The Tribunal did not accept that there were any relevant differences in terms of the screening process for asylum seekers returning to Sri Lanka, whether voluntarily or by escort.
To the possibility that the applicant might find himself questioned by authorities, the Tribunal found that the applicant would be released without further interest. The Tribunal found that the applicant does not fall within the risk profiles of those who might face a real chance of suffering harm and that he would not be perceived as a present risk to the Sri Lankan state or government or as a person having elaborate links to the LTTE. The Tribunal did not accept that the applicant would be subject to any monitoring by the police or the military and did not accept that his particular psychological vulnerabilities will be impacted.
The applicant undoubtedly placed a huge amount of country information before the Tribunal to support his claim. But in my view the Minister correctly submits that most of the information relied upon by the applicant and cited in his written submissions concerns conditions in detention or prison. In circumstances where the Tribunal found that there is no substantive risk of the applicant being detained or imprisoned, save for what should be relatively safe passage through the airport screening process, the Tribunal was entitled to weigh the evidence in that context.
Furthermore, in my view there is no proper basis to the applicant’s submission that the Tribunal failed to consider the country information supporting the applicant’s claims with an active intellectual engagement[47]. The comprehensive reasons of the Tribunal suggest otherwise.
[47] Minister for Home Affairs v Omar [2012] FCAFC 188 at [37]-[38] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ
The Tribunal took into consideration the letters from the applicant’s accredited mental health social worker, dated 4 December 2015 and 19 August 2016. The applicant’s mental state and his vulnerabilities are discussed at [69] of the reasons. The Tribunal also explored the country information with which was supplied and plainly traversed the materials relied upon by the applicant which were referred to earlier in these reasons.
As the Minister pointed out in his written submissions, the High Court has recently cautioned against the use of phrases like active intellectual engagement. In Plaintiff M1/21 v Minister for Home Affairs [2022] HCA 17, the majority said:
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
It is a matter for the Tribunal to consider and weigh the evidence before it and make findings after engaging in that evaluative exercise. Based on a fair reading of the Tribunal’s reasons, I see no proper basis to say that the Tribunal did not do so here. If the reasons of the Tribunal reveal anything, it is that the Tribunal did carefully turn its mind to the risks asserted by the applicant, but found that he would not be subjected to them because he does not have a profile which identifies him as a potential candidate for detention, he is of little interest to the authorities and is unlikely to be monitored by them. The applicant may disagree with the Tribunal’s assessment of the material but I do not accept the submission that the Tribunal did not engage with it.
Conclusion as to ground one
For the reasons set out in the foregoing paragraphs, the applicant has failed to make out any of the particulars referred to in ground one and does not establish jurisdictional error.
Ground two
In ground two the applicant contends that the Tribunal failed to consider with an “active intellectual engagement” whether the applicant, with his particular vulnerabilities, had a real chance of suffering persecution or significant harm by torture “while in detention” or under the control of the Sri Lankan authorities, on his return.
This ground is an extension of or reformulation of particular (c) to ground one and for the reasons given above it meets the same fate. Ground two does not reveal any jurisdictional error.
Ground three
By ground three the applicant contends that the Tribunal fell into jurisdictional error by unreasonably rejecting the applicant’s claims that he had any involvement with the LTTE, that the CID or other authorities continue to visit the applicant’s family’s home or that the applicant would be at risk of persecution or significant harm in detention on his return.
As discussed earlier, the factual bases for these complaints is the same as those advanced in support of particulars (a)-(c) of ground one. Whereas in ground one the applicant contended that the rejection of various claims made by the applicant revealed an error in the interpretation or application of the “real chance” or “real risk” tests, by ground three the applicant contends that the rejection of those same claims was legally unreasonable.
There is no single test or settled categories for assessing whether a decision is legally unreasonable. The circumstances in which a finding of unreasonableness may be made are not closed or limited by particular categories of conduct, process or outcome. However, the test for unreasonableness is stringent and the courts will not lightly interfere with the exercise of the statutory power involving a discretion[48].
[48] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
A decision-maker may be found to have abused its statutory power if the decision lacks an evident and intelligible justification or if the decision does not fall within a range of possible outcomes which are defensible regarding the facts and the law. The obligation for a Tribunal to act reasonably extends not only to the final decision, but to the conduct of the review itself.
Determining whether the Tribunal has transgressed the boundaries of reasonableness, is heavily dependent on the facts and statutory context of each individual case. However, at least in the instant case, the applicant must identify findings which are irrational or illogical, unjust, arbitrary or capricious and which no reasonable Tribunal could have arrived at on the same evidence.
In this case, the Tribunal was presented with a significant number of claims for protection and an array of inconsistent and conflicting evidence, about which it was entitled to express concern. The Tribunal made findings regarding the applicant’s credit but did so heeding the judicial cautions cited at [24]-[25] of its reasons. Over some 27 pages and after three hearings, the Tribunal in my view carefully navigated and considered the evidence before it. Some findings were made in favour of the applicant and others were not, which in itself reveals an orthodox process of weighing and evaluation.
In my view, each of the findings impugned by ground one, was plainly open to the Tribunal, for the reasons I have given above and which I will not repeat here. Those findings were not legally unreasonable and the applicant has not exposed jurisdictional error. Ground three must also be dismissed.
DISPOSITION
For the reasons set out above, the applicant has not demonstrated that the decision of the Tribunal made on 16 December 2016 is affected by jurisdictional error.
The application for judicial review will be dismissed.
I will order that the applicant pay the Minister’s costs.
I certify that the preceding one hundred and twenty (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 7 July 2023
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