ANB15 v Minister for Immigration
[2016] FCCA 3244
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANB15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3244 |
| Catchwords: MIGRATION – Judicial Review – applicant for Protection Visa – whether Tribunal should have made an enquiry to verify the authenticity of a document which it found not to be genuine on the grounds of general findings of credit contrary to the applicant – “critical fact” – consideration of if and when is reasonable for Tribunal to make enquiry – finding that Tribunal’s process and findings effected by jurisdictional error – matter remitted for re-hearing. |
| Legislation: Migration Act 1958 (Cth) s.424 |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 LTB v Wednesbury Corporation [1948] 1 KB 223 SZRKY v Minister for Immigration [2013] FCA 352 |
| Applicant: | ANB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 832 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 22 & 24 June 2016 |
| Date of Last Submission: | 24 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
That the decision of the Refugee Review Tribunal made 26 March 2015 be quashed.
That the matter be remitted to the Administrative Appeals Tribunal for re-hearing.
That the first respondent pay the applicant’s costs in the sum of $7,250.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG832 of 2015
| ANB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application is for judicial review of a determination of the Refugee Review Tribunal (as it then was) affirming a decision of the Minister’s delegate not to grant the applicant a Protection Visa.
The applicant is from Sri Lanka. He is Tamil and claims to be a supporter of the Tamil National Alliance (“TNA”). His religion is Hindu. His claim for protection is that he says that his life is in danger in Sri Lanka because of the following:
i)the applicant is a national of Sri Lanka and of no other country;
ii)he has no right to enter and to reside in any other country;
iii)the applicant is of Tamil ethnicity and a Sri Lankan citizen;
iv)the applicant is Hindu; and
v)the applicant claimed his life is in danger because of his race as a Tamil, his religion as a Hindu, and his political opinion as a supporter of the Tamil National Alliance (TNA)[1].
[1] See applicant’s written submissions 9 June 2016 at [5]
The Tribunal's Decision
The Tribunal gave lengthy reasons and concluded at [152] and [153]:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, therefore he does not satisfy the criterion set out in s36(2)( a).
Having concluded that the applicant does not meet the refugee criterion in 236(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa), however, it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
The Tribunal's reasons disclose a number of concerns as to the applicant’s credibility, including inconsistencies in his evidence, chronological discrepancies in respect of his evidence and claims, and implausibilities in his evidence. In making its findings, the Tribunal considered the applicant's own evidence, together with material and submissions put on his behalf. The Tribunal also considered available country information.
Application to this Court
The amended application argues 7 separate grounds each heavily particularised. The grounds are often interrelated with similar arguments. The simple grounds are:
i)The Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.424 of the Migration Act 1958 (“the Act”) to get information or otherwise.
ii)The Tribunal fell into jurisdictional error in that it was illogical and made findings of material questions of fact based on assumption or error, but without probative evidence.
iii)The Tribunal fell into jurisdictional error in failing to have regard to a relevant consideration, or an integer of the claim, or a material question of fact.
iv)The Tribunal fell into jurisdictional error in failing correctly to apply or to interpret the law.
v)The Tribunal fell into jurisdictional error in that it was unreasonable in its decision and reasons.
vi)The Tribunal fell into jurisdictional error in not having regard to the information before it in breach of its obligations under the law, including ss.414, 415, 420, 424, 424A, 424AA and 425 of the Act.
vii)The Tribunal fell into jurisdictional error in that there was a reasonable apprehension that the Tribunal was biased in the sense of not having a mind open to the applicant’s claims.
Ground 1 – that the Tribunal failed to itself make enquiries as to crucial facts
Firstly, the applicant references a finding of the Tribunal at [64.1] of the reasons as follows:
The applicant provided supporting documents. The Tribunal noted that there was country information indicating that documents can be fabricated, and it would have to weigh up that information together with credibility concerns. The documents included:
A letter from Seenthamy Yoheswarn MP dated 23 August 2012, with translation. It stated that the applicant was fully involved in the election campaign for the TNA party; he had faced life threat by unknown group for this reason; his mother complained on 5 February 2012 that her son had been abducted and assaulted by “government joined political party group (earlier armed group)” and he was released on 17 February 2012. He informed the MP that he had gone abroad in fear of his life and the MP certifies that he needs security at this time. Having regard to the credibility concerns and the country information, the Tribunal is not prepared to accept that this is a genuine letter. The Tribunal does not give this letter any weight.
The applicant says that the Tribunal had before it a letter purporting to be from an MP attesting to the applicant’s support of TNA.
The applicant says that where his credibility was an issue and ultimately determinative of the Tribunal's findings then the Tribunal could and should have made the “obvious enquiry” in corroborating or otherwise rejecting a critical fact. The applicant relies on comments of the High Court in Minister for Immigration and Citizenship v SZIAI & Anor[2] where their Honours comment in respect of the obligations of a Tribunal:Although decisions in the Federal Court concerned with a failure to make obvious enquiries have led to references to a 'duty to enquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.
If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an enquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[2] [2009] HCA 39 at [25]
The applicant therefore argues that the factual platform here sits comfortably with the rare or exceptional circumstances when the failure by a Tribunal to enquire can ground a finding of jurisdictional error in that the ultimate decision is rendered manifestly unreasonable.[3]
[3] LTB v Wednesbury Corporation [1948] 1 KB 223
I accept that there is no general duty or obligation on a Tribunal to make enquiries over and above the applicant's case, as prosecuted by him. I do accept, however, that the Tribunal is an inquisitorial body with power to elicit information. The question for me is nevertheless not one as to whether this Tribunal had a duty to enquire but rather whether that the Tribunal's decision is infected by jurisdictional error.
The first respondent argues that the letter is simply corroborative of the applicants’ claims and says in his written submissions at [24]:
In this case, there was nothing legally unreasonable or unfair in the Tribunal not making enquiries of the Sri Lankan MP.
(a)The Tribunal expressly found that the letter was not genuine and gave cogent reasons for that conclusion based on its grave concerns about the applicant’s credibility…
(b)Accordingly, the Tribunal could not have come under any requirement to enquire further about this issue – it had expressly found the letter not to be genuine (and calling the phone numbers could not have improved the applicant's position).
I reject the first respondent's submissions. A 'critical fact’ here was the applicants’ claims to have worked for TNA. True as it is that the MPs letter could only be corroborative evidence as to a fact or claim, it is corroboration where the credibility of the applicant himself was determinative of rejecting the applicant's claims and hence his assertion of facts. That is, that the Tribunal simply at [64] rejected the genuineness of the letter based on general credibility concerns in respect of the applicant. It was available to the Tribunal to simply check the authenticity of the letter by contact with the alleged author. To my mind, this would constitute a reasonable and appropriate enquiry given the 'critical' issue of credibility. Such enquiry would then have either supported/confirmed the Tribunals collateral credit findings or, alternatively, independently corroborated the applicant's credit. Consequently, in a matter where the Tribunals findings are based substantially, if not totally, on credit, material corroborative of credit is critical and the enquiry not onerous. I accept, therefore, that this is one of those limited factual platforms where the Tribunal had information available to it that it could or should have verified or dismissed by making reasonable enquiry of the author and it follows that it was not reasonable to proceed to make its findings absent such enquiry.
I therefore find that the Tribunal fell into jurisdictional error and that its determination is infected accordingly.Secondly, the applicant claims a similar error that the Tribunal, in failing to invite or seek medical information about the applicant's scar on his shoulder.
The Tribunal’s reasons at [45 – 47] are critical to this argument.
The Tribunal says here:…In the applicant statement, he said that when he was abducted, on one occasion he was pushed so hard against the wall, he sustained a large injury on his shoulder.
However, at the Entry Interview, when asked questions about the abduction and the injury to his shoulder, he said 'I was beaten by a rod and I fainted. I don't know what happened after that. I didn't go to hospital. I just got first aid at home.’
At the interview with the delegate, as set out in the delegates decision record provided to the Tribunal, the injury on his shoulder was discussed with the applicant, and he again said it was caused by being pushed against the wall. The delegate put to him that he had provided inconsistent evidence about how he sustained this injury. However, when the delegate referred to the inconsistent evidence in the decision record, there was an error in how it was referenced, the delegate mixing up the source of each statement.
I do not accept the applicant’s argument on this occasion. The Tribunal is the ultimate finder of fact and credit. At [49] the Tribunal put to the applicant for comment and response the inconsistencies in his evidence as to the source of the scar. In this case, the Tribunal had before it conflicting evidence or explanation. It is therefore entitled to make findings of credit accordingly. This is not a matter, as in particular (a) where there was available evidence which could be authenticated. It is not for the Tribunal to prosecute the applicant's case by seeking further evidence or clarification of his claim. In this sense, I distinguish particular (b) from particular (a). I find the no merit in the second particular of this ground.
Ground 2 – the applicant claims here that the Tribunal fell into jurisdictional error in that it made findings of fact without evidence
The applicant articulates no less than six particulars of alleged error summarised as:
a)At [30] of its reasons – 'the Tribunal considers that if the applicant had been inspired to volunteer to work for the TNA, and had done so, he would have been able to provide more detailed that the organisation';
b)At [31], the Tribunal considered that if the applicant was working for a particular candidate, and was 'fully involved' in the election campaigns he claims, and as the letter he submitted claimed, then he would have been aware of which party his candidate belonged to within the alliance.
c)At [32], 'the Tribunal accepts that different circumstances occur in different countries, however if, as claimed by the applicant, he was targeted because his earlier support for the TNA was effective, it does not seem credible that their targeting of him was so lax, and did not occur in the lead up to the 2012 elections. The Tribunal considers this undermines his claim that he was targeted at all for any political support, and his credibility.'
d)The Tribunal found at [49] the applicant to be inconsistent in his various evidence as to the source of his scar.
e)That the Tribunal considered that the applicant had changed his evidence as to those who had abducted him and his knowledge of who had done so.
f)The Tribunal made a critical finding that it was not satisfied that the applicant faced a real chance of persecution or a real chance of significant harm because of his Tamil ethnicity at [112] and was not satisfied that there is a real chance of serious harm due to the scar on his shoulder and both without probative evidence.
I accept the general proposition of counsel for the first respondent that for the applicant’s argument here to succeed there must be no 'skerrick' of evidence to support the Tribunal's findings.[4] I also accept that such an argument does not apply to 'negative findings' in the sense that a Tribunal simply does not believe an applicant's account.
[4] SZRKY v Minister for Immigration [2013] FCA 352 at [24]
I am not persuaded by the applicants various arguments under this ground. As to particulars (a), (b) and (c) the Tribunal simply disbelieves the applicants’ assertions. In so far as it is the finder of fact and credit the Tribunal is entitled to rely on its own expertise and matters such as chronology to make findings negative to the applicant's credit in the same way as it can and does make findings positive to credit. I find no merit in particulars (a) – (c) of this ground.
I have some difficulty in the applicant arguing 'no evidence' where the developed argument appears to relate to 'inconsistencies' observed by the Tribunal and hence there must necessarily be some evidence available to the Tribunal on which to ground its determination. As such, I can only understand the applicant’s argument therefore to be nothing more than a quarrel with the findings of the Tribunal. Consequently,
I find no merit at particular (d) of ground 2.The particularly of ground 2 emanates from [42] and [43] of the Tribunal’s reasons which state:
However, he told the Tribunal (in March 2015) that he was sure that it was the Karuna Group who abducted him. When the Tribunal asked how, and when, he became sure, he said he only became sure the course of the letter he received from the Karuna Group in about February 2015 at home. The Tribunal put to the applicant, however that in his second statement, signed in November 2013, he was sure that it was the Karuna Group who had abducted him, stating that they had targeted him, detained him once and he believed they would do so again, and he feared what they do to him if they find him.
When the Tribunal put this concern to the applicant, he then changed his evidence to say that he was not initially 100% certain but later (before the letter) he became more certain. The Tribunal has considered this response, but does not find it persuasive. The Tribunal considers that the applicant has changed his evidence to respond to the Tribunal's concerns, which undermines his claims that he fears the Karuna Group, and that they abducted him, or sent him a letter.
The applicant says that, contrary to the Tribunal's findings at [42], the applicant did not assert certainty in his statement of November 2013 where he says:
I believe that if I returned to Sri Lanka I will be targeted by the Karuna Group. They have detained me once and I believe they will do so again.
Firstly, and strictly speaking, I do not accept that there was 'no evidence' for the Tribunal to make its finding. The applicant may argue the Tribunal’s interpretation of his statement but this still constitutes 'evidence'. In any event, I am satisfied that the Tribunal was not attributing at [42] a direct quote to the applicant in the use of the word 'sure'. The reasons at [42] do not purport to quote him as such. Rather, I am satisfied that the Tribunal was simply exposing here the unequivocacy of the applicant in his statement of November 2013.
The equivocacy comes with his oral evidence in 2015 where he indicated previous uncertainty as to the identity of his alleged abductors. This, therefore, constitutes inconsistency in evidence which the Tribunal is obliged to address and assess. Again, it constitutes 'evidence' and the applicant must fail as to particular (e) of ground 2.Similarly the applicant's claim that the finding that he would not face a real chance of persecution or real chance of significant harm based on his Tamil ethnicity was made without evidence and must fail. At [112] the Tribunal summarised the evidence before it as:
Having regard to the country information, and the individual circumstances of this applicant, the Tribunal is not satisfied that he faces a real chance of persecution now or in the reasonably foreseeable future.
The above statement is made under the heading ‘the weight of evidence'. It articulates its consideration at [111]. It references 'country information'. I do not accept the applicant’s argument that the determination is made without evidence and particular (f) of ground two must fail.
Ground 3
The applicant here claims error in the Tribunal by not having regard to a relevant consideration or integer of a claim or a material question of fact.
The first particular of this ground argues that the Tribunal made a finding that the applicant was not a witness of the truth at [56] but erred in failing to consider whether the applicant may have been partly truthful and partly embellishing a core of truthful claims.
This argument can be disposed of easily. The applicants’ claims were put on the basis of them each being truthful. The Tribunal in its reasons identified a number of credibility concerns. The Tribunal is entitled to make findings of credit and to accept or reject a claim or assertion.
The Tribunal is not required to enter into a further enquiry then as to whether the fabrication relates only in the form of embellishment or exaggeration.[5][5] Minister for Immigration v Yusuf [2001] 206 CLR 323
Particular (b) of this ground again relates to the applicant’s scarring. The applicant complains that that the Tribunal makes a finding of credit contrary to the applicant at [56] but then and later under a heading 'other matters' the Tribunal considers and rejects the applicants scarring as supporting of his claims. The essence of the argument is that the Tribunal had made its findings of credit without considering a material fact or claim namely the applicant’s scarring.
The very same argument applies to the Tribunal’s considerations of the MPs letter.
I am satisfied that the structure of the Tribunal’s reasons is a matter for the Tribunal itself, perhaps governed by only a requirement to be intelligible. Further, I accept the submission of counsel for the first respondent that the Tribunal’s reasons should not be overly critically scrutinised with an eye for error. Put simply, the reasons should be read as a whole, rather than in segments. The Tribunal considered the claim in respect of both the scar and the MPs letter and did so before the heading and conclusions under ‘credibility summarised' and its logical process entirely understandable on a reading of those reasons as a whole. I find no merit to the particulars (b) and (c) of ground 3.
The applicant at particular (d) complains that the Tribunal made findings without considering whether the relevant law was discriminatory in respect of Tamils.
At [126] – [128] the Tribunal says:
The Tribunal finds that the process the applicant will be subjected to at the airport, including by being detained or held for questioning, and then referred to the court to be dealt with, and being subjected to a fine, will be pursuant to a migration law.
The Tribunal considers there is no credible evidence before the Tribunal in the country information that is discriminatory in its terms or in its intention or application.The Tribunal is not satisfied that there is any evidence to suggest that people are being subjected to the law (including the fine) for a Convention reason.
The Tribunal finds that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, including being held on remand/detained for questioning, will be applied on a non – discriminatory basis under a law of general application. The Tribunal is satisfied on the basis of the DFAT report, and the absence of any other evidence of discriminatory application or intent, that failed Tamil asylum seekers returning involuntarily to Sri Lanka from Australia (having travelled by boat) in these circumstances are treated in the same way as any other group. The Tribunal is not satisfied that the applicant would be subjected to a harsher discriminatory penalty or a longer period of remand, or different treatment or questioning, for any reason. The Tribunal does not accept that the processing has the necessary discriminatory element to constitute persecution under the Convention (s91R (1)(c)). The Tribunal is not satisfied that the applicant faces a well – founded fear of persecution during his processing at the airport, questioning and detention/remand, and the subsequent legal process.
I am satisfied that the Tribunal here addresses and considers and determines this issue and hence there can be no merit to particular (d) of this ground.
At particular (e) of ground 3 the applicant argues that the Tribunal failed to consider whether there was any evidence of a change in the interpretation of scarring by the Sri Lankan authorities, especially given the volume of country information before the Tribunal.
The Tribunal at [136] and [137] (see above) considered the applicant’s scarring as an implied claim. The Tribunal asked the applicant directly as to whether he had suffered any problem. He did not, in that context allude to any anticipated problems. The Tribunal referred to country information. There is, therefore, no merit in this particular of the applicant’s argument.
Ground 4
The applicant here argues in two particulars that the Tribunal failed to correctly apply or interpret the law.
The first particular simply repeats the complaint and argument put at particular (d) of ground 3 that the law which deals with failed Tamil asylum seekers returning to Sri Lanka is discriminatory. That argument has been disposed of above.
At particular (b) the applicant argues that it was not open to the Tribunal on a correct application of the law to find that he did not have a well – founded fear of persecution or a real chance of significant harm given evidence of torture and mistreatment of Tamils and the treatment of Tamils with scarring.
At [136] and [137] of its reasons the Tribunal considers the applicant scarring as an implied claim given there is no direct claim from a written or oral submission. The Tribunal asked directly of the applicant as to whether he had suffered any problems. The Tribunal had the benefit of a DFAT report. The Tribunal noted that the applicant had not produced country information in support of any such claim. I am satisfied therefore that the Tribunals finding was one entirely open to it in its role finder of fact and credit. I find no merit in either particular of ground 4.
Ground 5
Ground 5 complains of unreasonableness in the Tribunal’s findings and is argued under no less than nine particulars. This argument overlaps an earlier ground of making findings without probative evidence and/or failing to consider a material fact.
The relevant law is settled and as put by the High Court (Crennan and Bell JJ) in Minister for Immigration and Citizenship v SZMDS[6] where their Honours say:
124.More recently it has been suggested that statutory Tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision – making it seems at least related to the implied standard of reasonableness following the articulation by Lord Green MR of what has come to be known as 'Wednesbury unreasonableness'. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration, but relevant considerations must be. It appears to be allied as well to the principle that fact-finding must be based on probative material, one correlate if of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common-law requirement in decision – making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as 'illogical or unreasonable or irrational' may merely be an emphatic way of expressing disagreement with it, and as to describe a conclusion that a decision maker is not satisfied as 'irrational’ might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
131.But, the test for it illogicality will irrationality must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[6] [2010] 240 CLR 611 at [124] & [131]
The bar therefore is a relatively high one in arguing unreasonableness of a discretionary decision.
Particular (a) argues that the 'timeline' of the applicant's narrative was such that a reasonable Tribunal could not have found as it did at [32] as follows:
The Tribunal accepts that different circumstances occur in different countries, however, if, as claimed by the applicant, he was targeted because his earlier support for the TNA was effective, it does not seem credible that their targeting of him was so lax, and did not occur in the lead up to the 2012 elections.
The Tribunal considers this undermines his claim that he was targeted at all for any political support, and his credibility.I do not accept this argument. The timeline discrepancy is noted and considered by the Tribunal. The placing of weight on facts and discrepancy in facts is a task of the Tribunal. It was a decision entirely open to it and whether or not a differently constituted Tribunal would have reached a different finding is immaterial.
At particular (b) the applicant attacks the Tribunal’s use of the word 'problem' at [35] and that the Tribunal did not allow for the applicant’s communication difficulties and ambiguity of language.
I reject this argument as being simply a quibble with the merits of the Tribunal's decision but in any event, it seems to me that the Tribunal did, in fact, consider the peculiarities of the applicant where it says at [57]:
The Tribunal has also considered the agents’ submissions at hearing that the applicant may have been nervous at appearing before a Tribunal, that there are minor inconsistencies, and it can be difficult to recall detail from a traumatic past; the Tribunal has considered these submissions however it is not persuaded that this can explain the difficulties with his evidence.
Particular (c) of the unreasonableness argument stems from the Tribunals reasons at [36] as follows:
While the Tribunal accepts that the applicant mentioned phone calls in his Entry Interview and the interview with the delegate, the Tribunal considers that if these phone calls had occurred, and as a result he feared he would be abducted or killed, that he would have mentioned them in his statement accompanying his protection visa application form. The Tribunal considers this admission undermines the claimed telephone calls.
The applicant argued before the Tribunal that there had been an initial mistranslation of his statement accompanying his Visa application and that this explained the alleged inconsistencies in his evidence.
This argument is clearly before the Tribunal for consideration. As an 'explanation' for a conceded inconsistency it is then for the Tribunal to accept or reject it. I find no merit in this particular.Particular (d) argues that a finding of credibility was unreasonable at [37]. The Tribunal properly sets out its concerns as to why telephone calls would make the applicant flee Colombo. It is clear that the Tribunal raises the concern with the applicant and that he provided an explanation which was not accepted by the Tribunal. No irrationality, illogicality, or unreasonableness is apparent in that consideration process. I am of the view, therefore, that this is simply a quibble with the Tribunal's findings and hence there can be no merit to this particular.
Similarly, particular (e) complains as to a finding that inconsistent evidence undermines the applicant’s claims. Counsel for the applicant concedes the evidentiary discrepancies but says that a reasonable Tribunal would have considered that the 'different evidence was not contradictory, but was complimentary’. This can only be a further quibble as to the merits of the Tribunal’s decision and hence has no merit.
Particular (f) emanates from the Tribunal’s reasons at [40] as follows:
…the applicant claimed in his statement that he was abducted by a group spoke Sinhalese. However, when the Tribunal asked what languages the people abducted him were speaking, he said there is a difference between Batticaloa Tamil and Jaffna Tamil, some spoke Tamil, and some spoke Sinhalese, generally all languages were spoken. When the Tribunal put to the applicant this was different to his statement, he said it could have been an interpreting error in drafting his statement, and it should have been that they were speaking Sinhalese and Tamil, all languages.
The Tribunal has considered this response, but does not find it persuasive, having regard to all the other concerns with his evidence.
The applicant asserts that it was open on all of the evidence for the Tribunal to find that there was no inconsistency in his evidence.
This may be the case but equally there was apparent inconsistent evidence before the Tribunal and it is then for the Tribunal to make findings as to credit and such a finding was clearly open to it here.Particular (g) argues that the Tribunal made unreasonable findings in not allowing for the applicant’s difficulties in communication and for the 'ambiguity of language'. Quite simply there is no evidence that the applicant suffered any misunderstanding anticipated in this ground. There is no indication from the applicant or in the reasons generally of a lack of understanding or any inability to be responsive. I find no merit in this particular.
Particular (h) argues that the findings of the Tribunal at [70] were unreasonable on the basis of the Tribunal accepting the applicant had lived from birth until he was twenty-one in a country afflicted by a civil war. The Tribunal did not accept that the applicant had been in hiding from the army. It did not accept that he had been rounded up, questioned, interrogated and arrested/detained. These are findings of fact and credit clearly open to the Tribunal and the fact that the applicant has lived in the country cannot make such a finding illogical or indeed a necessary premise to a contrary finding.
Particular (i) makes the same argument as to communication as particular (g) but to a different finding. It can be disposed of pursuant to the same reasons.
Consequently, I find no merit to any of the particulars in ground 5 and generally see them as quibbling with the findings of the Tribunal as to fact and credit.
Ground 6
The applicant here argues that the Tribunal erred in not having regard to information before it and repeats particulars (d), (e) and (f) of ground 2 together with particulars (b) – (i) of ground 5.
I am satisfied generally that the Tribunal had regard to all the information and evidence in respect of his scarring. I am satisfied that the Tribunal had regard to all of the evidence in respect of the identity of the applicant's alleged abductors. I am satisfied that the Tribunal and regard to all of the evidence in respect of the available country information in relation to persons with scars. This disposes of the sub-paragraphs of particular (a) of ground 6 which therefore has no merit.
I am satisfied that the Tribunal had regard to all the evidence before it in respect of any interpreted documents and any evidence before it in respect of language difficulties. I am satisfied that the Tribunal had regard to all evidence in respect of violence directed at Tamils and at TNA in Sri Lanka. I am satisfied that the Tribunal had regard to all evidence before it in respect of the languages spoken by the applicant's alleged abductors. I am satisfied that the Tribunal had regard to all evidence before it in respect of the applicant’s history of living since birth in Sri Lanka which was a country afflicted by civil war. Insofar as it is necessary I repeat my findings in respect of the particulars of the previous grounds repeated but not further particularised at ground 6 of the application. I achieve the above level of satisfaction after a close reading of the Tribunal’s comprehensive reasons and further
I accept the submission of counsel for the first respondent that in respect of a number of these particulars the applicant appears to, in fact, acknowledge the Tribunal’s considerations of the evidence and simply disagrees with the Tribunal's findings which, of course, cannot amount to error in the Tribunal.
Ground 7
The applicant here argues that the Tribunal fell into jurisdictional error in that there was a reasonable apprehension of the Tribunal being biased on the basis of ‘so many doubtful questions were resolved against the applicant'.
The test in respect of bias is whether a reasonable and properly informed third party might reasonably apprehend that the Tribunal might not have bought an impartial mind to its consideration.
An assertion of bias or apprehended bias, being a serious matter, demands that a person making such an assertion be able to clearly show how the Tribunal’s reasoning can evidence such an assertion.
To allow any less stringent test would, in my view, open the floodgates in respect of allegations of perceived bias in respect of virtually any finding of disputed fact or credit against an applicant. I am of the opinion that the applicant here does exactly that, in that he argues generally from findings contrary to him, that the Tribunal must therefore be biased. This argument is without any sound basis and, without further particularisation, can have no merit.
Conclusion
Having found merit in the first particular of ground 1 of the applicant's claim, I will order that the applicant have the relief sought and that the matter be remitted to the Administrative Appeals Tribunal for re-hearing. There will be an order for costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 21 December 2016
4
2
2