AIY15 v Minister for Immigration
[2015] FCCA 1571
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIY15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1571 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – whether law of general application – whether the tribunal engaged in a qualitative assessment – no jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) s.45 |
| BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 MZAPO v Minister For Immigration & Anor [2015] FCCA 96 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39 SZTFR v Minister for Immigration and Border Protection [2015] FCA 545 Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AIY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 917 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 5 June 2015 |
| Date of Last Submission: | 5 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Mack |
| Solicitors for the Applicant: | Westside Legal |
| Solicitors for the Respondents: | Ms K. Hooper DLA Piper |
ORDERS
The further amended application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 917 of 2015
| AIY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ in respect of a decision of the Tribunal made on 9 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA) visa. The grounds of the further amended application are as follows:
1. The Tribunal applied the wrong test pursuant to s 91R (2) of the Migration Act 1958 by proceeding to a qualitative assessment of the nature and degree of a harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently serious and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].
Particulars
At paragraph [75] and [76] of the decision, the Tribunal accepted that the applicant would be charged with offences under Sri Lanka's Emigration and Immigration Act, would be arrested and detained in relation to the offences and would be remanded in custody for up to several days in poor prison conditions; the Tribunal then engaged in a qualitative assessment of the circumstances of the applicants detention whilst in custody rather than assessing whether the process of being questioned, arrested and detained in custody would amount to a deprivation of the applicants liberty (s91R (2)(a)).
2. The Tribunal failed to engage in the required analysis or provide reasons reflecting the required analysis for determining whether Sri Lanka's Immigrant and Emigrants Act was of a law general application which would not be applied in a non-discriminatory way at (76] and thereby fell into jurisdictional error: see Applicant A (1997) 190 CLR 225; Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [48]-[51].
3. At paragraph [80] – [81] the Tribunal misapplied the definition of significant harm in 36(2)(aa) of the Migration Act and thereby fell into jurisdictional error.
Particulars
The Tribunal have failed to properly consider whether detention on return would involve degrading treatment or punishment within 36(2A) and s(S)
Counsel for the applicant formerly sought for an adjournment in order to wait for the decision of the High Court in relation to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. There is no utility in granting an adjournment as it is clear that the proceedings are doomed to failure and for the reasons given it is clear that there was no jurisdictional error by the Tribunal. An adjournment in these circumstances would only increase the costs of the parties and utilise limited court time. The decision of WZAPN has been overruled by the Full Court of the Federal Court, in SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41. This Court also identified grounds on which WZAPN could be distinguished in MZAPO v Minister for Immigration & Anor [2015] FCCA 96.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant applied for a protection visa on 15 November 2012 that was refused on 7 August 2015. The applicant appeared before the Tribunal on 15 December 2014 and 17 February 2015 to give evidence and present arguments and was assisted by an interpreter and was also represented by a registered migration agent. The Tribunal carefully identified the relevant law, including the issue concerning complementary protection. The Tribunal set out the claims and evidence of the applicant including the submissions that had been advanced by the applicant.
The Tribunal noted in relation to the country information, at para.51, that DFAT had assessed there are no official laws and policies that discriminate on the basis of ethnic extraction or language. The Tribunal had before it country information that identified the nature of the offence under s.45(1)(a) of the Immigrants and Emigrants Act 1949 and identified the consequences for offences under the Act including the exposure to a prison sentence and fines. That information was set out at CB 149 through to 154. Relevantly, the Tribunal made the following findings:
62. The Tribunal is unable to be satisfied as to the applicant’s claims that he has a well founded fear of persecution based on his claims to the Tribunal. The Tribunal is also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims.
63. The Tribunal is not satisfied that the applicant has a well founded fear of persecution on the basis of his Tamil ethnic extraction or his Catholic religion and religious activities or on the basis that he would be perceived to have an actual or imputed political opinion that he supports the LTTE.The Tribunal is also not satisfied that the applicant has a well founded fear of persecution on the basis of his claim that because he left Sri Lanka illegally and unlawfully that he fears harm on the basis of being a member of a particular social group of failed asylum seekers should he return to Sri Lanka. The Tribunal is also not satisfied that the applicant has a well founded fear of harm from [M] for any convention based reason.
64. …The applicant was unable to satisfy the Tribunal of his claims that he feared harm on the basis of the practice of his Catholic religion. The applicant was also unable to satisfy the Tribunal that he had a well founded fear of harm on the basis that Sinhalese Catholic priests were reducing or eliminating religious services in the Tamil language. The applicant’s evidence about that issue was vague and in essence did not disclose that he was at any real chance of serious harm on the basis that he claimed to oppose the activities of some priests in that regard. The Tribunal also had concerns as to the applicant’s evidence about his claim that he was involved in some prominent way in Catholic Church activities in his role as a zonal leader. The applicant’s December 2014 statement was suggestive of a prominent or activist role in church affairs and activities. However his evidence before the Tribunal was that he was able to carry out these duties even though he also claimed that he was moving constantly across the country and in essence he told the Tribunal that his role was not a full-time or demanding or constant role and that the planning for the procession occurred in December every year and that he had been a zonal leader for only one year. The Tribunal also noted the comment in the entry interview document in which it was suggested that the applicant did very little in the role of being a “captain of the church”. The Tribunal has considered the applicant’s evidence and claims in relation to a fear of harm on the basis of his religious activities but does not believe that the applicant has a well founded fear of harm on this basis. In essence the applicant only raised in any detailed way his claim to fear harm on the basis of his religious activities in his statement of December 2014 and there was no reference of a claim on this basis in his statutory declaration of November 2012 in support of his protection visa application or in his February 2014 statement referred to earlier in these reasons. The Tribunal believes that the applicant has inflated his religious activities and his claims to fear harm on that basis in order to strengthen his protection visa application. The Tribunal does not find that the applicant’s claims or evidence about this issue to be credible.
…
69. The Tribunal after considering all the issues and the evidence is not satisfied as to the applicant’s claims that he provided support to the LTTE either by way of the purchase of clothing on several occasions using his own money or in relation to the purchase of the van which he claimed he partially financed. Aspects of the applicant’s evidence overall about these issues was inconsistent in terms of evidence to the Tribunal and the claims in his statements about these issues. In particular the variation as to when he said he was involved in purchasing the van (given the criticality of this issue in relation to the applicants overall claims) and the general credibility of the applicant’s claims surrounding this issue cause the Tribunal not to be satisfied as to the applicant’s claims that he was forced to provide support to the LTTE. The applicant claimed in his February 2014 statement that the LTTE was suspicious of him and thought he might be a government spy and yet he claimed he was trusted to buy equipment for the LTTE and he claimed used a significant amount of his own money for that purpose. In that context the applicant’s claims do not seem credible. The applicant’s claims about using a significant amount of his own money to provide material support to the LTTE do not seem credible having regard to the overall circumstances and evidence in relation to this issue. The applicant’s reasons for continuing to travel, given his claims of the threats by the LTTE, after he married and his relocation to an LTTE area do not appear credible in that he could have avoided the issues by moving with his wife to [P]. The loss of his wife’s employment which would have been caused by relocation has to be balanced against the applicant’s claims of serious threats by the LTTE. The applicant’s claims that his wife was regarded with suspicion by people in [P] also has to be assessed in the context of the applicant’s claims of serious threats from the LTTE. In considering these issues in an overall context the applicant’s claims as to the reasons why he relocated to [B] and had been moving back and forth between the areas do not seem credible when considering the overall threat level the applicant claimed was occurring from the LTTE and also the risks associated with the suspicion from government authorities about the applicant’s movements. In all those circumstances the Tribunal is not satisfied as to the applicant’s claims that he provided support to the LTTE and that on that basis and he would be perceived to have an imputed political opinion of being pro-LTTE. The Tribunal does not find the applicant’s claims or evidence about these issues to be credible. In those circumstances and having also considered the applicant’s often vague and inconsistent evidence and the Tribunal’s concerns about his credibility the Tribunal is also not satisfied as to the applicant’s claim that his name was on a list of people suspected of LTTE connections and is at risk of harm on that basis.
…
71. … The Tribunal does not find the applicant’s claims or evidence about these issues to be credible.
…
73. The Tribunal, after considering the applicant’s claims and his evidence , does not accept the claim that [K] and [M] are different names for the same person. The applicant’s claims to fear harm from the Karuna group appear based around his claim that he provided support to the LTTE and that [M] would have told that group and the army and security forces that the applicant had connections with the LTTE. The Tribunal has considered the applicant’s claims and his evidence about [M]. The Tribunal has also considered the applicant’s claims to fear harm from the Karuna group. The Tribunal is not satisfied that the applicant has a well founded fear of harm from [M] or the Karuna group on the basis that the applicant would be perceived to have an imputed political opinion of being pro-LTTE. The applicant’s inconsistent evidence surrounding his claims about [M] and the applicant’s evidence generally about these claims cause the Tribunal to not accept the credibility of the applicant’s claims about these issues. The Tribunal also rejects the applicant’s claims that he gave limited details earlier about aspects of his claims because he feared the information would be provided to the Sri Lankan Government. The Tribunal is also not satisfied as to the applicant's claims that he was constantly harassed by Sri Lankan security forces after he returned from Malaysia. The applicant's vague evidence and lack of clear details and the concerns about his credibility does not satisfy the Tribunal in relation to these claims.
74. The Tribunal has considered the applicant’s overall credibility in relation to his claims. As indicated the Tribunal found that much of the applicant’s evidence was vague and has referred to a number of inconsistencies in relation to his evidence and his claims. The applicant claimed that he suffered from anxiety and had memory difficulties. The Tribunal has referred to a letter provided to the Tribunal in relation to his anxiety and his concerns about his visa status. The Tribunal has considered the applicant’s claims about his poor memory but also notes that in December 2014 the applicant provided a very detailed further statement in relation to his claims and that statement refers to particular dates and details of incidents that the applicant claimed occurred and that were relevant to his claims. The Tribunal also notes the details provided in the applicant’s statement of 12 February 2014 and the information that he provided in his statutory declaration in support of his protection visa application. The applicant’s statement of December 2014 is reasonably close in time to the Tribunal hearings and as indicated provides significant details in support of the applicant’s claims. The Tribunal has considered this issue in relation to the applicant’s memory claims but having regard to the details provided in the applicant’s statements provided to the Tribunal does not accept that the applicant’s often vague and inconsistent evidence has been caused by memory problems. The Tribunal also does not accept the applicant’s claim that he did not provide details at an earlier stage about his claims because he was fearful that the information would be shared with the Sri Lankan government or that interpreters might disclose information about the applicant. The Tribunal is not satisfied as to the credibility of many of the applicant’s claims and that the events and circumstances occurred as claimed by the applicant. Overall ,after having considered the issues, the Tribunal is not satisfied that the applicant is a credible witness. [emphasis added]
The Tribunal turned to the issue of the consequences of the applicant being returned to Sri Lanka. The Tribunal turned to the issue of the application of the Immigrants and Emigrants Act and the consequences of the applicant having departed Sri Lanka unlawfully and, relevantly, found:
75. The Tribunal accepts that the applicant left Sri Lanka unlawfully and that if he returns to Sri Lanka he will be charged with offences under the Immigrants and Emigrants Act of having left Sri Lanka unlawfully. The applicant claims to fear harm if he returns to Sri Lanka on the basis that he will be a failed asylum seeker who departed Sri Lanka illegally and unlawfully. As outlined in relation to the country information raised with the applicant during the hearing the Tribunal based on the DFAT country reports of October 2014 and February 2015 accepts that the applicant will be questioned if he returns to Sri Lanka by Sri Lankan immigration officers, state intelligence officers and the airport CID. The Tribunal accepts the DFAT report information that returnees are treated according to standard procedures during the questioning and processing procedures regardless of their ethnic extraction or religion. The Department assesses returnees are not subject to mistreatment during their processing at the airport. The Tribunal accepts the information that where a returnee is believed to have illegally departed Sri Lanka that they will be charged with an offence or offences of having left unlawfully. Persons who are charged with offences are processed and then taken before a magistrates court for bail issues to be determined. The country report indicates that people who are arrested may remain in police custody and if a magistrate is not available charged persons may spend up to several days in custody on remand and in those circumstances would be detained in jail. The Tribunal accepts the jail conditions in Sri Lanka are poor due to overcrowding and because of poor conditions generally. The country report also notes that DFAT was informed in March 2014 by the Sri Lankan Attorney Generals Department that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing illegally. Fines have been issued to act as a deterrent towards joining future boat ventures. The country reports indicate that there are a range of penalties for leaving Sri Lanka unlawfully. Those penalties can include a custodial sentence of up to 5 years and a fine of up to Rs.200,000. The country report provides information about the variation in the fines that have been imposed and this indicates that judicial discretion is involved in the imposition of fines.
The Tribunal identified the submissions that were advanced by the applicant and, relevantly, the Tribunal found:
76. The Tribunal, after having considered the claims and evidence and country information, is not satisfied that the applicant faces a real chance of serious harm if he returns to Sri Lanka either now or in the reasonably forseeable future because he is a Tamil. The Tribunal accepts that the applicant, because he left Sri Lanka illegally, will be charged with offences. The Tribunal accepts that he will be questioned and arrested and detained in relation to those issues. The Tribunal accepts that the applicant would be remanded in custody pending a bail determination. The Tribunal accepts that the applicant may be remanded in custody for up to several days and including in prison conditions in Sri Lanka. The Tribunal accepts that prison conditions in Sri Lanka are poor. The Tribunal is not satisfied that the applicant would be detained on remand for any significant period. The Tribunal accepts that any questioning or detention of the applicant would be the result of the non-discriminatory enforcement of a law or laws of general application in terms of the enforcement of the Immigrants and Emigrants Act and any Criminal Procedure Acts in relation to offences and not for any convention based reason. The applicant’s profile when considered with the assessment of risk identified in the 2012 UNHCR eligibility guidelines do not indicate or suggest that the applicant would be singled out for persecutory harm or face a real chance of persecutory harm for any convention reason. The Tribunal does not believe that the imposition of a fine as the likely penalty for the applicant having left Sri Lanka illegally would expose the applicant to a real chance of persecutory harm.
77. … The Tribunal is not satisfied that the applicant has a well founded fear of harm because he is a Tamil of the Catholic faith who left Sri Lanka illegally and who could be imputed with an implied political opinion of being pro-LTTE. The DFAT thematic report in relation to people with links to the LTTE indicates that the Sri Lanka authorities remain sensitive to the potential re-emergence of the LTTE and the security forces focus on people of interest including those with suspected or real LTTE links or people who are believed to have separatist views or have engaged in criminal activities. The country information suggests that the risk profile for people in relation to anti-government views would increase for those who are perceived to be supporting separatism or a revival of the LTTE. On the evidence before the Tribunal the applicant has no such profile. The DFAT country reports of 2014 and 2015 also refer to a survey conducted on behalf of the Australian Government by the development policy centre at the Australian national University. That survey indicated that the majority of people looking to leave Sri Lanka and travel to Australia irregularly did so mainly for economic opportunity. In those circumstances it is reasonable to assume that the Sri Lankan government would be aware of the economic reasons for people leaving Sri Lanka illegally rather than for any imputed political opinion of being anti the Sri Lankan government. In November 2012 DFAT advised that it had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka.DFAT stated that it had spoken to NGO’s involved in facilitating the voluntary return of former asylum seekers/refugees and that NGO’s had told DFAT that they had not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they had facilitated. DFAT referred to advice from the British High Commission in Colombo to the effect that they had received no substantiated cases of mistreatment in respect to their returnees (DFAT, country information report number 12/67, 29 November 2012,CX 299951).
78. On the basis of the evidence and information before the Tribunal it is not satisfied that the combination of the applicant’s ethnic extraction and his living overseas would specifically impute with him having links to the LTTE. The Tribunal is also not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he lived in Australia or because he sought asylum in Australia. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of his membership of a particular social group of failed asylum seekers or because he is a Tamil who left Sri Lanka illegally and applied for asylum in Australia. The Tribunal is also not satisfied that there is a real chance the applicant will face serious harm as the result of any follow-up action that might be taken ,should he return to Sri Lanka, by any government authorities or agencies. The Tribunal is also not satisfied that the applicant will be attacked during anytime that he is held briefly in prison, pending bail, because he is a Tamil.
79. The Tribunal has considered the applicant’s claims both individually and cumulatively and had regard to the evidence and submissions and the country information in relation to those claims. The Tribunal is not satisfied that having regard to the evidence before the Tribunal together with country information that the applicant has a well founded fear of persecution on the basis of his claims should he return to Sri Lanka either now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant faces a real chance of persecutory harm based on his claims that he fears harm because he is a Tamil of the Catholic religion or because if he returns to Sri Lanka he would be perceived to have an imputed political opinion of being pro-the LTTE or because he left illegally and because he would be returning as a failed asylum seeker he could be perceived to have an imputed political opinion of being pro-LTTE or anti the Sri Lanka government. The Tribunal is not satisfied that there is a real chance that the applicant will face persecutory harm on the basis of his membership of a particular social group of failed Tamil asylum seekers who left Sri Lanka illegally and applied for refugee status in Australia. The Tribunal is also not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm arising from the publication by the Department of asylum seekers who were in detention as at 31 January 2014. There is no evidence to support the applicant's claims to fear harm on that basis. The Tribunal is also not satisfied as to the applicant's claims that he is at risk of harm because he could be perceived to have nominated the son of the former President of having been involved in people smuggling activities. The applicant did not satisfy the Tribunal as to his claims in relation to this issue and the Tribunal is not satisfied that the applicant has a well founded fear of harm or a real chance of serious harm on that basis. The Tribunal is also not satisfied that the applicant faces a real risk of significant harm on that basis. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for a convention based reason based on his claims if he returns to Sri Lanka either now or in the reasonably foreseeable future.
The Tribunal addressed the issue of significant harm in respect of complementary protection, and relevantly found:
80. The Tribunal accepts that the applicant faces arrest on charges of illegal departure if he returns to Sri Lanka. The Tribunal has considered whether that situation would put the applicant at a real risk of significant harm if he returned to Sri Lanka. The Tribunal has considered the definition of significant harm contained in S.36(2A) of the Act and the relevant definitions contained in S.5(1) of the Act. As indicated the Tribunal accepts that the applicant will be questioned and detained and charged with offences in relation to leaving Sri Lanka illegally. The most recent DFAT country reports referred to in these reasons indicate that the processing issues involved in the procedures for returnees involves interviewing the person and checking records and databases and that the questioning is undertaken by various officials at the airport. DFAT assesses that detainees are not subject to mistreatment during the processing at the airport. The Tribunal accepts the prison conditions in Sri Lanka are poor. The Tribunal is not satisfied that the arrest and questioning and detention of the applicant and including overcrowding and poor conditions that the applicant would face in jail amount to significant harm as contemplated by the Act or that the infliction of such treatment as contemplated by the provisions in the Act would be intentional as is required by the Migration Act. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that he faces a real risk of significant harm . The Tribunal for the reasons already discussed is not satisfied that the applicant faces a real risk of significant harm based on his claims. [emphasis added] The Tribunal is not satisfied, on its assessment of the evidence and the information referred to in these reasons, that the applicant faces a real risk of significant harm from [M] or [K] or because of his religion or because he is Tamil or for any perceived political opinion of being pro LTTE or anti the Sri Lankan Government or because he ,if returned to Sri Lanka, would be a member of a particular social group of failed asylum seekers who left unlawfully.
81. The Tribunal has considered the applicant’s claims in terms of s.36(2)(aa) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs(a) to (e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature such as that would meet the definition of cruel and inhuman treatment or punishment in s.5(1). The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such arm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.[emphasis added] The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.
It was in those circumstances the Tribunal found that the applicant did not satisfy the criteria under s.36(2)(a) or 36(2)(aa) and the applicant was not a person to whom Australia owed protection obligations. Those findings were clearly open. There is no substance in relation to ground 1 of the application. I do not accept that the Tribunal engaged in a qualitative assessment.
This is a case where it is clear that the Tribunal complied with the requirements identified by Goldberg in Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222 at [51]. Moreover, it is clear in this case that the Tribunal made findings of the same kind identified by Bennett J at [45] in SZTFR v Minister for Immigration and Border Protection [2015] FCA 545 and, in these circumstances, there is no substance in relation to ground 1 or ground 2 of the application.
In relation to ground 3, counsel for the applicant identified the ground should be understood and be read as a failure to hold that s.45 of the Immigrants and Emigrants Act had an objective intention that was to cause extreme humiliation. It was contended that that objective could be inferred and abstracted from the identification of the provisions in the Court Book at 141 and 150 and by reason of the applicant’s fear identified at 337 to 338 in paragraph 5.
It is clear that the alleged fear at 337 to 338 was the subject of findings by the Tribunal relevantly in paragraph 76, and the fear referred to is not a basis upon which such a serious adverse inference could be drawn. No other material was relied upon to support the drawing of such an inference. The findings as to the nature of the law were a matter for the Tribunal.
It is clear that the Tribunal made findings that that law and the detention and questioning that would follow would be as a result of a non-discriminatory enforcement of the law, and that it was a law of general application and was not enforced for any Convention-based reason. In those circumstances, ground 3 is doomed to fail. The further amended application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 June 2015
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