ASB17 v Minister for Immigration
[2018] FCCA 2391
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2391 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – application dismissed. |
| Legislation: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AVQ15 vMinister for Immigration & Anor [2017] FCCA 893 |
| Applicant: | ASB17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 329 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 26 April 2018 |
| Date of Last Submission: | 26 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Maloney |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the respondents: | Mr Wood |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application filed on 20 February 2017 and amended on 15 February 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 329 of 2017
| ASB17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the IAA”). The IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant is a Sri Lankan national. The applicant applied for a SHEV on 21 January 2016.[1] The Minister’s delegate refused to grant the applicant a visa on 22 September 2016.[2]
[1] Court book pages 89 to 93.
[2] Court book pages 117 to 127.
As required by section 473CA of the Migration Act 1958 (Cth) (“the Act”), the applicant’s application was referred to the IAA for review.[3] The IAA affirmed the delegate’s decision on 23 January 2017.
[3] Court book pages 130 to 138.
The applicant was born in Vavuniya in the Northern Province of Sri Lanka on 21 February 1997.[4] He is a Hindu man of Tamil ethnicity.[5] He left Sri Lanka when he was fifteen years of age and arrived at the Cocos Islands on 17 September 2012.[6]
[4] Court book page 69 at paragraph [2].
[5] Court book page 69 at paragraph [3].
[6] Court book page 52.
The applicant’s claims
The applicant’s claims are principally set out in a statutory declaration he signed on 5 September 2013, a supplementary statement dated 12 January 2016 which accompanied his application for a SHEV and post interview material submitted to the delegate following his interview on 28 April 2016.[7]
[7] Court book page 69, page 72 and pages 102 to 104.
As noted in the IAA’s decision record, the applicant’s claims can be summarised as follows:
·After the civil war ended, the Sri Lankan army established bases throughout his region. Since the end of the war soldiers have continued to abduct people, rape women and target wealthy Tamils. All Tamil families are suspected of association with the Liberation Tigers of Tamil Eelam (LTTE) and treated poorly by the army. Tamils from Vavuniya are suspected of having strong links to the LTTE.
·In 2012 his cousin was abducted and his kidnappers demanded a significant ransom from his uncle who was a goldsmith and was wealthy. His cousin was beaten and tortured and not given food for days but was eventually released after the ransom was paid after three days.
·His father received a phone call from the same people who kidnapped the applicant’s cousin saying that the applicant would be abducted and killed and he would have to pay a ransom. He thinks they may have targeted his father because he works in a jewellery shop so they think he is rich and would pay a ransom because the applicant is his only son. His father is not wealthy and only works in a jewellery shop as a labourer. His father arranged for the applicant to flee Sri Lanka by boat in mid-2012.
·His father received another call from the same people two weeks after the applicant left Sri Lanka demanding that he tell them the whereabouts of the applicant and asked for the applicant’s details but his father did not say anything. His father says they were Sinhalese but spoke some Tamil but they are not sure which group they belong to.
·Approximately three months later these people called again and asked his father about the applicant’s whereabouts, they were loud and angry and his father hung up on them. His father then changed his phone number.
·He does not have a national identity card which people would consider suspicious.
·His father was shot during the war in 1994 by a Sinhalese group.
·The Sri Lankan authorities will be suspicious about his family when they discover he was in Australia. He also fears being detained and assaulted or inhumanely treated or humiliated by the authorities for having left the country illegally.
·His personal details were released on the internet by the Department of Immigration and Border Protection
(the Department) and he thinks the Sri Lankan authorities have access to this information and may be suspicious about his family links and the information he provided to the Australian authorities. He fears he will be arrested and severely punished on return. It may also cause problems for his family.·He fears he will be more vulnerable to being mistreated whilst in custody because he is young.[8]
[8] Court book pages 144 to 145.
By letter dated 11 April 2016, the applicant was invited to attend an interview which was scheduled for 28 April 2016. In that letter, the applicant was invited to bring to that interview various documents including “any evidence you have relating to your protection claims”. [9]
[9] Court book pages 95 to 97.
Following the interview, correspondence was sent to the Department of Immigration and Border Protection on the applicant’s behalf from the Refugee Advice & Casework Service (“the RACS”) on 6 May 2016 seeking an extension of one week in which to provide further submissions. That extension was granted and on 13 May 2016, the following documents were submitted on the applicant’s behalf by the RACS:
a)post-interview submissions;
b)letter dated 18 January 2016 from a Justice of the Peace; and
c)letter dated 18 January 2016 from a member of Parliament.[10]
[10] Court book pages 98 to 115.
It is notable that the written submissions contain the following opening statement:
We act for (the applicant) in his application for a Safe Haven Enterprise (subclass 790) visa…[11]
[11] Court book page 104.
The written submissions close with the following statement:
We look forward to your response. If you would like more information please contact…of this office…[12]
[12] Court book page 115.
The purpose and context of the two letters which were submitted with the post interview submission was revealed in paragraph 1.4 of those submissions which relevantly stated:
The Applicant gave evidence that he was still wanted in Sri Lanka and that he fears he would be abducted upon his return. The Applicant has sought evidence from his father of the risks he would face if he was returned to Sri Lanka. On his behalf, his father obtained letters from the local Member of Parliament and Justice of the Peace attesting to this fear. We enclose these letters with this submission.[13]
[13] Court book page 105.
On 22 September 2016, the Minister refused to grant the applicant a SHEV under section 36(2)(a) and (aa) of the Act.[14] The delegate accepted that the applicant’s cousin was kidnapped and held for ransom but was not satisfied that the applicant faced a real chance of harm on this basis. The delegate was not satisfied that the applicant’s father had been threatened as claimed. The delegate did not refer to the letters provided on the applicant’s behalf.
[14] Court book page 120.
By letter dated 28 September 2016, the applicant was advised that the delegate’s decision to refuse his protection visa was referred to the IAA for review.[15] This correspondence advised the applicant that he could provide a written statement as to why he disagreed with the Minister’s decision and any claim or matter that he presented to the Minister that was overlooked.[16] It also stated that such submission should be provided within 21 days of the referral and explained the limited circumstances in which new information could be considered.[17]
[15] Court book pages 129 to 138.
[16] Court book pages 130 to 131.
[17] Court book pages 131 to 134.
Relevantly, the applicant called the IAA on 30 September 2016 in relation to the correspondence he had received. The file note of that discussion reflects that:
a)the applicant asked for clarification of the correspondence he had received; and
b)when asked if the applicant had a migration agent, the applicant stated that he did.[18]
[18] Court book page 139.
The IAA’s reasons
On 23 January 2017, the IAA affirmed the delegate’s decision under section 473CC(2)(a) of the Act.[19]
[19] Court book pages 141 to 162.
The IAA accepted that it was plausible that the applicant’s cousin had been abducted and a ransom was demanded.[20] The IAA was willing to accept that the applicant’s father had been perceived to be wealthy, and had therefore been the subject of a threat and ransom demand by the same people.[21]
[20] Court book page 145 at paragraph [8].
[21] Court book page 146 at paragraph [9].
However, in light of the applicant’s own evidence, the IAA found that:
The applicant and his family did not know who abducted his cousin or threatened the applicant and there is not enough evidence before me to satisfy me that it was the Sri Lankan authorities.[22]
[22] Court book page 146 at paragraph [10].
The IAA also referred to the applicant’s post-interview submissions and the two letters provided to the delegate together with that submission. Relevantly, the IAA:
a)did not accept that the applicant was perceived to be associated with the LTTE by the Sri Lankan authorities;[23]
b)
accepted that the letter from the Justice of the Peace dated
18 January 2016 corroborated parts of the applicant’s claims but was concerned that some aspects of that letter were inconsistent with the applicant’s claims and therefore gave little weight to that letter in its assessment;[24] and
c)noted that the claims made in the letter from a member of Parliament dated 18 January 2016 about the applicant’s support for the ‘Tamil struggles’ and ‘our party’ were not consistent with the applicant’s claims and therefore again gave little weight to this letter in its assessment.[25]
[23] Court book page 146 at paragraph [11].
[24] Court book pages 146 to 147 at paragraph [12].
[25] Court book page 147 at paragraph [13].
Legislative pathway
This application was dealt with under Part 7AA of the Act. Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to provide a limited form of review of a ‘fast track decision’. Part 7AA applies to, among others, ‘fast track review applicants’ who were unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014 and who had not been taken to a regional processing country.[26] A decision to refuse a fast track applicant a protection visa is a ‘fast track reviewable decision’.[27]
[26] Migration Act 1958 (Cth), s 5.
[27] Migration Act 1958 (Cth), s 5.
In essence, the scheme established in Part 7AA of the Act provides for:
a)the Minister to refer a fast track reviewable decision to the Authority as soon as reasonably practicable;[28]
b)the Minister must provide the IAA with the delegate’s reasons and the material provided by the applicant in support of his or her application as well as any other relevant material in their possession or control;[29]
c)the IAA is then required to review the decision and may either affirm the decision of the delegate or remit it to the delegate for reconsideration with such directions or recommendations as permitted by the regulations;[30]
d)Division 3 of the Part 7AA is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA;[31] and
e)the authority is required, subject to the provisions in Part 7AA, to conduct a review without accepting or requesting new information and, importantly, without interviewing the applicant.[32]
[28] Migration Act 1958 (Cth), s 473CA.
[29] Migration Act 1958 (Cth), s 473CB.
[30] Migration Act 1958 (Cth), s 473CC.
[31] Migration Act 1958 (Cth), s 473DA.
[32] The circumstances in which new information may be requested or accepted and how such information is to be dealt with is set out in ss 473DC and 473DD of the Migration Act 1958 (Cth).
Grounds of review
The applicant’s application initially raised three grounds of review.
The first ground was abandoned following the High Court’s decision in Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481; 353 ALR 600 (“M174”).
The applicant’s remaining two grounds essentially relate to the way in which the IAA dealt with the two letters provided on the applicant’s behalf together with the post-interview submissions.
Ground one
In light of the High Court decision in M174, ground one was, quite properly, not pressed by the applicant. I therefore do not deal with the submissions of the parties in relation to this ground for review.
Ground two
The second ground of review is:
The Authority’s failure to consider exercising its power to remit the proceeding to the Delegate under s 473CC of the Act, or its power to get new information from the Applicant under section 473DC of the Act, was legally unreasonable.
Particulars
(a)As outlined at [1a.-f.] above, the Delegate failed to consider the supplementary written submission and letters provided by the Applicant on 13 May 2016.
(b)The authority considered the supplementary written submission and letters in its review. It concluded that the claims contradicted (rather than merely added to) the Applicant’s claims as theretofore asserted. It subsequently found that, contrary to the claims articulated in the letters, the Applicant was of no further interest to the individuals who had threatened his family in the past. It also declined to engage with the claim that the Applicant had supported pro-Tamil political causes.
(c)Owing to the Delegate’s failure to consider the supplementary written submission and letters, the issues the Authority raised with respect to those materials were raised for the first time by the Authority. Moreover, there was no evident and intelligible basis, on the materials before the Authority, for its conclusion that the claims articulated in those materials were inconsistent with (rather than merely additional to) the Applicant’s pre-existing claims.
(d)In the circumstances, it was unreasonable for the Authority not to consider exercising its power to remit the matter to the Delegate, or get new information from the Applicant.[33]
[33] Applicant’s amended application filed 15 January 2018 at pages 4 and 5.
It is common ground that the IAA is bound to exercise its powers under Part 7AA reasonably, in the sense of that term as explained in
Minister for Immigration and Citizenship v Li[2013] HCA 18; 87 ALJR 618; 297 ALR 225; 139 ALD 181.
As stated in the applicant’s supplementary written submissions:
The gravamen of ground two of this application is that the Authority, despite:
16.1raising matters relating to the post-interview materials about which, owing in part to the Delegate’s failure to consider those materials, the Applicant was not on notice; and
16.2reading the post-interview materials as inconsistent with, rather than merely additional to, the Applicant’s claims, where there was no evidentiary or logical basis to draw that conclusion (and where such a conclusion might have been rebutted by the Applicant); and
16.3the exceptional circumstance constituted by the Delegate’s jurisdictional error, which would have permitted the consideration of new information from the Applicant;
did not consider exercising its powers to get (and subsequently consider) new information from the Applicant under Div 3 of Pt 7AA of the Act, or to remit the proceeding under s 473CC of the Act (emphasis in original).[34]
[34] Applicant’s outline of submissions filed 23 April 2018 at paragraph [16].
Moreover, it was submitted that the applicant’s youth together with the fact that he was unrepresented were additional factors weighing in his favour insofar as affording him an opportunity to comment before making a finding.
The evidence reveals that the applicant did have some representation before the delegate. So much is evident from the post interview submissions which were prepared on his behalf by RACS. In addition, the file note of the conversation with the applicant on 30 September 2016 records that the applicant was asked whether he had a migration agent and replied in the affirmative. There is no evidence before this court to suggest that he was not represented before the IAA.
The applicant relied on CRY16 v Minister for Immigration and Border Protection [2017] FCCA 1549 (“CRY16”) in support of this ground.
CRY16 concerned a fast track review dealt with under part 7AA of the Act, in which the delegate at first instance found that applicant did not face a real chance of serious harm in his home neighbourhood and therefore did not meet the criteria for a protection visa. The matter was referred to the IAA which determined that the applicant in fact did face a real chance of serious harm in his home town, but then went on to consider the possibility of an internal relocation. The IAA concluded that it would be reasonable for the applicant to relocate to another area within his home country where he would not face the same risk of serious harm.
The applicant sought a review of the IAA’s decision. The judge at first instance confirmed that the IAA was required to exercise its discretion reasonably and did not do so in this instance.
On appeal to the Full Court of the Federal Court, Robertson, Murphy and Kerr JJ noted:
The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent…[35]
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings by the delegate (emphasis added).[36]
[35] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [76].
[36] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82].
The applicant claimed that a similar error was made here on the basis that:
a)the delegate did not consider the post interview submission and letters;
b)as such, the concerns about the consistency between those letters and the applicant’s claims were made for the first time by the IAA; and
c)the IAA therefore ought to have considered whether to exercise its power to obtain further information or to remit the issue to the IAA.
It was submitted on behalf of the Minister that the Full Court decision in CRY16 does not support the applicant’s principal submission under the second ground of review.
I am persuaded by the Minister’s submissions in this regard. It is clear that in considering whether an internal relocation is reasonable in the sense of practicable, the IAA is required to consider the particular circumstances of the applicant. In CRY16, by failing to invite the applicant to provide new information addressing this point, the IAA “disabled itself from considering what was reasonable, in the sense of ‘practicable’ in terms of relocation”.[37]
[37] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82].
In this case, the issue was whether the applicant had a fear of harm in his home area. He had an opportunity to provide such information as he considered relevant both during the interview with the delegate and afterwards. He exercised that opportunity by providing the
post-interview submissions and the two letters. In addition, as noted above, he had the opportunity to identify any matter before the delegate which had been overlooked. He did not do so.
CRY16 is distinguishable from the facts in this case. In this case, the IAA assessed the evidence that the applicant put forward in support of his claim. That assessment is not in itself a matter which must be put to the applicant for further comment. In contrast, in CRY16, the IAA considered a matter which had not been raised by or, importantly, with the applicant. That failure in the context of the IAA considering an internal relocation, was the basis of the court’s finding that there had been a jurisdictional error.
In addition, the applicant also submitted that the IAA’s conclusion that the post-interview letters were ‘inconsistent with’ rather than simply augmenting the applicant’s claims was not plainly evident on the materials.
The Minister argued that the finding that the new assertions in the letters from the Justice of the Peace and the member of Parliament were ‘inconsistent’ with the applicant’s claims were open to the IAA. In this regard, the Minister relied upon AVQ15 vMinister for Immigration [2017] FCCA 893[38] and CED15 v Minister for Immigration and Border Protection [2018] FCA 451 (“CED15”).[39]
[38] AVQ15 vMinister for Immigration [2017] FCCA 893 at [22] to [23].
[39] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [23].
CED15 involved the consideration of a claim that the tribunal erred by failing to have regard to the fact that “the later provision… of further claims or evidence was not necessarily contradictory or inconsistent, but the organic development and gradual revelation of his history”[40]. In dismissing the appeal, Thawley J relevantly stated:
[40] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [2].
…it is a complaint that the Tribunal could have viewed the giving of inconsistent or incomplete evidence to have been an “organic and gradual revelation” of the appellant’s history rather than a matter of inconsistency. Perhaps the Tribunal could have so concluded; but to fail to so conclude is not jurisdictional error. The assessment of those matters was precisely the task the Tribunal was to undertake in exercising its jurisdiction and undertaking a review. The appellant’s complaint is really that he would have preferred the Tribunal to conclude that the provision by the appellant of ‘later’ claims or evidence was an organic development of his history, rather than the provision of new claims and evidence inconsistent with earlier claims and evidence. In these general terms, this particular invites review of the merits of the Tribunal’s conclusions rather than the identification of jurisdictional error on the part of the Tribunal (emphasis added).[41]
[41] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [20].
…
Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.[42]
[42] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [23].
This reasoning equally applies in this case. In the circumstances, it was open to the IAA to have regard to the matters raised in the two letters provided by the applicant. Indeed the applicant submitted that correspondence to the IAA and invited it to have regard to those letters in the consideration of his claims. Moreover, it is evident from the
post-interview submissions that the purpose of providing these two letters was to support the applicant’s assertion that, “he is still wanted in Sri Lanka and that he fears that he will be abducted upon his return”.[43] These letters were not submitted in support of additional claims by the applicant.
[43] Court book page 105 at paragraph [1.4].
When read in their entirety, the inconsistencies found between some of the claims made in the letters and the applicant’s claims were findings reasonably open to the IAA to make.
It was further argued for the Minister that section 473EA(1) of the Act does not require the IAA to give reasons for any ‘procedural’ decisions that it makes including a decision to consider any new information under section 473DD or whether to remit the claim under section 473CC(2)(b).[44] It was also submitted that the absence of any reference to these matters in the IAA’s reasons ought not to be taken as evidence of a failure to consider those matters.[45] Given my findings above, it is not necessary for the purposes of these reasons to come to a concluded view on this point.
[44] First respondent’s outline of submissions filed 24 April 2018 at paragraph [38].
[45] Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 85 ALJR 327; 273 ALR 22; 119 ALD 1 and BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [38] to [52].
For each of these reasons, ground two is not made out.
Ground three
The third ground of review is:
The Authority’s treatment of the supplementary written submission and letters provided by the Applicant on 13 May 2016 was legally unreasonable, and/or constituted a failure to consider those materials.
Particulars
(a)As noted at 2.a.-d. above, the Authority gave little weight to the Applicant’s supplementary written submission and letters of 13 May 2016. It concluded that the claims expressed in those materials contradicted the Applicant’s earlier claims. It rejected the claim, expressed in those materials, to the effect that the Applicant’s family had been subject to ongoing threats and harassment from the individuals seeking the Applicant. It also did not engage with the Applicant’s claim to have supported pro-Tamil political causes.
(b)However, there was no reasonable basis to determine that the claims articulated in the supplementary written submission and (in particular) the letters contradicted (rather than merely augmenting) the Applicant’s earlier claims.[46]
[46] Applicant’s amended application filed 15 February 2018 at page 5.
This ground relies upon similar arguments to those articulated in relation to the second ground of review. In essence, it is argued on behalf of the applicant that not only did the IAA act unreasonably in failing to consider exercising its powers to obtain further information, but it also unreasonably dealt with the material before it.
In support of this ground, the applicant referred the court to
SZIEW v Minister for Immigration & Citizenship[2008] FCA 522; 101 ALD 295 (“SZIEW”). In SZIEW, the issue was whether the tribunal had erred in the manner in which it had dealt with the evidence from a witness produced by the applicant. The evidence was about the applicant’s husband being a Maoist. The tribunal did not accept that the applicant’s husband was a Maoist and concluded that the witness evidence tendered was not reliable as the tribunal did not have the opportunity to test that evidence.
Madgwick J relevantly stated:
… In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable. [47]
[47] SZIEW v Minister for Immigration & Citizenship [2008] FCA 522; 101 ALD 295 at [14].
…
In such a case, it would be, and was here, perverse not to accord the reported statement considerable weight, unless the witness reporting it appeared untruthful or unreliable. But the Tribunal made no criticism at all of the reporting witness and may safely be inferred to have had none.[48]
[48] SZIEW v Minister for Immigration & Citizenship [2008] FCA 522; 101 ALD 295 at [17].
Madgwick J concluded that the manner in which the tribunal dealt with the evidence in SZIEW amounted to a jurisdictional error. It was argued that similarly, in this case, in dealing with the letters from the Justice of the Peace and the Member of Parliament in the way it did, the IAA fell into error.
In response, it was submitted on behalf of the Minister that SZIEW is readily distinguishable. That case concerned how the tribunal performs its functions particularly when applying the hearsay rule in circumstances where the original witness may not be available.[49] The present case involved no such consideration.
[49] Transcript page 25 at line 46 to page 26 at line 2.
I am persuaded that the current proceedings are distinguishable from SZIEW. The IAA here was not concerned with issues of hearsay and did not dismiss the further evidence provided by the applicant on the basis that it contained untested hearsay evidence in circumstances where it was clearly not possible to call the witnesses to test that evidence. Rather the IAA, as stated above ‘gave little weight’ to those documents on the basis that it had formed a view that there was an inconsistency between the claims made by the applicant himself and the claims asserted (in part) in those documents.
As stated above, a fair reading of the IAA’s reasons makes it clear that they considered the correspondence from the Justice of the Peace. The IAA found that that letter “corroborates aspects of the applicant’s original claims” but then went on to discuss the other claims made about the treatment of the applicant which it concluded were inconsistent with the applicant’s own claims.[50] As stated above, this finding was open to the IAA on the basis of the evidence before it. Consequently, it was not legally unreasonable for the IAA to conclude that little weight ought to be given to that letter.
[50] Court book page 146 at paragraph [12].
Similarly, a fair reading of the IAA’s reasons explain why the IAA concluded that it was appropriate to give the letter from the Member of Parliament little weight.[51] Again, this finding was reasonably open to the IAA.
[51] Court book page 147 at paragraph [13].
For each of these reasons, ground three is also not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 31 August 2018
8
3