Awc22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 123
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 123
File number(s): BRG 113 of 2022 Judgment of: JUDGE EGAN Date of judgment: 16 February 2024 Catchwords: MIGRATION LAW –whether the Tribunal properly conducted a hearing – absence of particulars in grounds of review – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36 and 91R Cases cited: CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Hamod v New South Wales [2011] NSWCA 375
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 14 February 2024 Date of hearing: 14 February 2024 Place: Brisbane Applicant: The applicant appearing on their own behalf Solicitor for the First Respondent: Xylie Tran, Sparke Helmore Second Respondent AAT ORDERS
BRG 113 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWC22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 FEBRUARY 2024
IT IS ORDERED THAT:
1.The Originating Application filed on 3 March 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs of an incidental to the Application for Review fixed in the amount of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a citizen of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 20 March 2013. The applicant has remained onshore since that time.
On 20 June 2013, the applicant applied for a protection visa.
On 7 November 2014, a Delegate of the Minister refused the protection visa application.
On 16 December 2014, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the Delegate.
On 4 August 2016, a differently constituted Tribunal affirmed the decision of the Delegate.
On 27 November 2017, an appeal from the decision of the differently constituted Tribunal to the Federal Court was allowed by consent, and a writ of certiorari issued quashing that decision.
On 9 April 2021, the applicant was invited to attend another hearing before the Tribunal scheduled for 13 May 2021. At the hearing on that day, the hearing was adjourned so as to allow the applicant to consider providing further evidence.
Between 8 July and 18 July 2021, the applicant provided further documents to the Tribunal. [1]
[1] Exhibit 1 – Court Book (CB) pp. 227-238.
On 19 July 2021, the Tribunal invited the applicant to comment on certain information which the Tribunal considered, subject to the applicant’s response, to be the reason, or a part of the reason, for affirming the decision under review. The letter of invitation was relevantly as follows: [2]
[2] CB pp. 240-241.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
1. In your evidence to the Tribunal, you claimed that:
a. In or about 2020, you were accused of theft of a rice husking machine;
b. The allegation came before the court in or about July or August 2012, and the case was dismissed; and
c. Following the dismissal of the court proceedings, supporters of the Awami league demanded money from you and your family and, on your failure to pay the demand, they attacked and destroyed the family shop.
2. In your evidence to the Tribunal, you claimed that court documents existed to support your version of events, and that you would seek to obtain them; and
3. Attached to your email to the Tribunal of 15 July 2021, you enclosed copies with certified translations of Bangladeshi court records indicating that, in February 2012, you were charged with offences relating to unauthorised entry into a residence and bombing for the purpose of committing murder and serious injury, and with stealing.
This information is relevant to the review because the court documents are inconsistent with your evidence to the Tribunal and suggest that the accounts you have previously provided of events in Bangladesh forming the basis of your protection claims are untrue.
If we rely on this information in making our decision, we may affirm the decision under review to refuse your application for a Class XA, Subclass 886 (Protection) visa.
Your comments or response should be received by 2 August 2021. If the comments or responses are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 2 August 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 2 August 2021 and you must state the reason(s) why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely
Zahra |
For the Registrar
On 2 August 2021, the applicant sent an email to the Tribunal [3] in which he conceded that there was a discrepancy between what he had said during the course of the hearing and what was contained in documents submitted by him to the Tribunal. He asked for the Tribunal to “ … consider my documents as valid evidence against my claim for asylum.”
[3] CB pp. 238 and 244.
On 27 August 2021, the Tribunal invited the applicant to attend another hearing listed for 21 September 2021.
On 21 September 2021, the applicant again appeared before the Tribunal to give evidence and present arguments whilst assisted by an interpreter. The applicant was then given a further four weeks to provide any additional material. The applicant subsequently provided further material to the Tribunal.
On 27 January 2022, the Tribunal again affirmed the decision of the Delegate.
On 3 March 2022, the applicant filed an Originating Application for Review of the decision of the Tribunal made on 27 January 2022.
Grounds of Review
The applicant’s grounds of review were as follows:
(1)The Applicant is a citizen of Bangladesh.
(2)The Applicant claimed that Australia owed protection obligations in respect of him.
(3)That the decision of the Second Respondent the AAT was affected by legal error.
(4)Relevant information not considered.
When the applicant appeared before the Court with the assistance of an interpreter, he was asked whether he wished to say anything in support of his application for review. He replied that he did not wish to say anything. The Court was not obliged to act as the advocate for the applicant in the prosecution of his claims. [4]
[4] Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley JA.
Consideration of Claims
At [5]-[15] inclusive of its reasons, the Tribunal identified the relevant criteria under section 36 of the Migration Act 1958 (Cth) (the Act) relevant to the grant or refusal of an application for a protection visa. The Tribunal further correctly identified what constituted serious harm as set out in s. 91R(2) of the Act, and what constituted a well-founded fear of persecution.
At [16]-[18] of its reasons, the Tribunal identified the complementary protection criteria under section 36(2)(aa) of the Act, and what constituted significant harm as defined under s. 36(2A) of the Act.
At [19] of its reasons, the Tribunal said as follows:
19.In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant’s claims as recorded by the Tribunal were set out at [20]-[34] of its reasons as follows:
20. The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
21. The applicant is a 44-year-old national of Bangladesh. He is a Sunni Muslim.
22.The applicant first arrived in Australia undocumented on 20 March 2013. He has remained onshore since.
23.On 20 June 2013, the applicant applied for a protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 7 November 2014.
24.On 16 December 2014, the applicant applied for review of the delegate’s decision to refuse his protection visa application.
25.On 4 August 2016, the First Tribunal affirmed the delegate’s decision. The First Tribunal’s decision was set aside by the Federal Court of Australia on 27 November 2017 and remitted to the Tribunal as presently constituted.
Claims:
26.The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.
27. The applicant claims he is a member of the Bangladesh Nationalist Part (BNP).
28.The applicant claims that due to his membership of the BNP, his life is in danger by (Name withheld), the Chairman and Secretary of the local Bangladesh Awami League Party (BALP) and supporters in his village.
29.The applicant claims that four months before his departure, the BALP’s local chairman blackmailed him and demanded 300,000 Bangladeshi takas. He claims the chairman and his men, NAME WITHELD and NAME WITHHELD came to his shop and told him if he wanted to operate his business, he should pay them the money. He claims they gave him 15 days and threatened that if he contacted the police they would shoot him.
30.The applicant claims that after he left Bangladesh on 21 February 2013, his father opened the shop and seven of the chairman’s men approached his father and asked about the applicant’s whereabouts. He claims the men intimidated his father and ransacked and destroyed the shop. He claims his father was intimidated and could not resist. He claims they stabbed his father and threatened that if he went to the police station they would kill him. He claims his father fled to his house and never opened the shop again.
31.The applicant claims that in 2010, NAME WITHELD, a member of the BALP filed a case against him and 15 other people accusing them of stealing a rice husking machine. He claims they never did this and that the case was filed in order to get money out of them. He claims the case was ongoing and remains pending in Bangladesh.
32.The applicant claims that if he returns to Bangladesh, the BALP supporters will target him because he is a BNP member and supporter. He claims the BALP are the current government in Bangladesh and it will not extend protection to the applicant as it views members of the BNP as its opponents and a threat to their hold on power.
33.The applicant claims relocation is not available to him because of the lack of state protection.
34.On 18 July 2021, the applicant submitted an undated statement to the Tribunal. In this statement, the applicant made new claims in relation to his disability. He claims he has had a stutter since childhood, which obstructs his flow of speech and results in incomplete expressions. He claims he did not have any means of receiving treatment for his stutter.
At [35] of its reasons, the Tribunal recorded the nature of the material which it had before it, including country information on Bangladesh relevant to the applicant’s claims. At [93] of its reasons, the Tribunal quoted extensively from a DFAT Country Information Report on Bangladesh dated 22 August 2019 which in paragraph 3.82 provided as follows: [5]
[5] CB pp. 295-297
3.82 DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.
At [43]-[56] of its reasons, the Tribunal recorded the nature of the evidence given by the applicant to it, noting at [55] as follows:
55.The Tribunal asked whether he had any documents or photographs relating to his claims that the shop was subsequently destroyed. He said he could not produce an such material because, at the time he did not have a decisive, such as a smart phone, to create any record. The Tribunal put it to him that this was irrelevant because, on his previous evidence, he was not there when the destruction happened. He said he wanted to make it clear that he was not in the shop at the time, but he was nearby – he was closer to the family farm than to the shop. The Tribunal put it to him that all of his previous evidence was that this incident occurred after he had left Bangladesh. He said that he had previously said it had happened when he was in Dhaka. The Tribunal said that if his evidence was not consistent on this central issue, it would have real problems with the credibility of his claims overall. This was the only instance he had advanced of politically motivated violence against him and his family. He said he was being consistent – he had consistently said that the Awami League had demanded money. He had decided not to pay and fled to Dhaka. After he got to Dhaka, they destroyed his shop. The Tribunal put it to him that, in his statement to the Department, he had claimed the incident occurred after 21 February 2013, that is, after he had left Bangladesh. He said it was possible that he had been misunderstood. At any event, the incident occurred before he arrived in Australia. The Tribunal said that, until now, he had consistently claimed that the incident had occurred after he left Bangladesh. He said it was a possibility that he had been misunderstood in that he had said it happened after he left his village, not his country. The Tribunal put it to him that he had given an interview to the Department in Darwin in April 2013: at this time, he had not mentioned the destruction of the shop. He said he had paid the extortioners a little bit of money and then had run away. He had said that he had not been back to his shop since. The Tribunal put to that it was his statement of June 2013 that first contained the details of the attack on the shop. He said it was a long time ago now. The Tribunal suggested to him that the details he had provided the Tribunal were inconsistent with his previous accounts and that the Tribunal may take the view that the incident did not occur at all. He said that from the Tribunal’s vantage point in Australia, it might well come to this conclusion but that he would like his claims to be viewed from a humanitarian point of view. The Tribunal said that the humanitarian considerations applicable to his claims were at the core of its considerations, but it first need to be satisfied that his central claims have a basis in truth.
At [57] of its reasons, the Tribunal recorded that it had put to the applicant a number of concerns about his evidence, namely:
(a)His claims to membership of the BNP appear to be vague and unconvincing, and are not supported by objective evidence despite his claims that such evidence is available;
(b)If the Tribunal is unable to accept his claims of BNP political activity, it may make it difficult to accept that any harm he claims to hae suffered was because of a Convention reason;
(c)His claim to have been the victim of a politically motivated court case is not supported by any documents, despite previously claiming that documents were available;
(d)The claims relating to the destruction of the shop was inconsistent with the evidence he had given to the Department and the First Tribunal and was also capable of being supported by documentary evidence which has not been provided.
At [66]-[83] of its reasons, the Tribunal carefully considered all of the applicant’s claims by reference to both his oral evidence and to documents provided to the Tribunal by him. The Tribunal identified many discrepancies when doing so.
At [86]-[91] of its reasons, the Tribunal set out the relevant considerations which it had to bear in mind when arriving at its decision, including the credibility of the applicant. When considering the applicant’s credibility, both in relation to his oral evidence, as well as in relation to the documentation provided to the Tribunal by him, the Tribunal at [96]-[100] found as follows:
96.The applicant's evidence to the Tribunal as presently constituted is summarised in paragraphs 45 to 47 above. His knowledge of party activities was, in my assessment, strikingly limited and he ventured no views in terms of the BNP's policies and aims in his local area, or of its internal processes. The documents he submitted as evidence of his party membership and activism are of very little value, being two versions of the same document, the second having been amended to take account of the Tribunal's criticisms. The submission of a committee membership list that contains no date is of very little assistance, bearing in mind the necessarily changing membership of party committees, the applicant's own claims of involvement only over a period of some three or four years, and the fact that his claimed membership ceased some 12 years ago. I have also had regard to the country information on the prevalence of document fraud in Bangladesh.
97.The Department of Foreign Affairs and Trade's latest country information report on Bangladesh reports on the following on document fraud:
5.43Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person's political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.
98.While the Tribunal notes that obtaining party documents may indicate the use of patronage networks, which might be probative of party membership, there is nothing in the documents to suggest that their origin is genuine. In coming to this assessment, I give considerable weight to the fact that the claimed committee membership list is undated as to its currency in both versions and the amendments made to the second version in apparent response to the criticisms made of it at the hearing. The signatures of the two officials in the second version appear likely to be in the same hand, although the Tribunal makes no finding in that regard.
99.I have considered the applicant's evidence concerning the political activities of his cousin, NAME WITHELD. As suggested by the country information, the applicant's place within a patronage network may be probative of party affiliation. However, I do not consider the applicant's claims in relation to NAME WITHELD to be reliable, the history of his political victimisation running counter to NAMEWITHELD own narrative and in the absence of any evidentiary support from NAME WITHELD. In the absence of any explanation, I consider the combination of the submission of the claimed membership list and the absence of any support from NAME WITHELD quite surprising, given that NAME WITHELD was his principal contact with and entree to the party.
100.In all of the circumstances, while I am prepared to accept that, in his local area, NAME WITHELD may have been identified as a BNP supporter, I do not accept his claims to have been an active member of the party.
At [102] of its reasons, the Tribunal found that the applicant was not an active or high profile member of the BNP, and noted that the applicant had made no claim that he had been involved in violent protests.
Again, on the question of credibility, the Tribunal carefully identified stark discrepancies in the applicant’s evidence. At [103]-[111] of its reasons, the Tribunal found as follows:
103.As noted above, NAME WITHELD's evidence to the Tribunal as to timing and nature of the extortion attempt and subsequent attack was inconsistent with evidence he had previously given and was not supported by the documentary material he submitted. His claim to have been the subject of a fraudulent lawsuit or trumped up criminal charge `in respect of the rice husking machine between 2010 and 2012 has no documentary or other evidentiary support. His claim that those proceedings precipitated the visit to the family shop for the purpose of extorting 300,000 taka has been consistently maintained and has some prima facie plausibility, subject to the observations below as to the evidence. The attack on the shop following NAME WITHELD's failure to pay and/or departure from the village contain serious inconsistencies. The first of these relate to the timing of the claimed event: NAME WITHELD's evidence to the Tribunal varied between it occurring while he was in Dhaka or after he had left Bangladesh. At the hearing, he made some remarks suggesting that he had been in the locality when the attack occurred but disclaimed them when the inconsistency was put to him. If the attack occurred at all, it is likely to have been at some time between April and June 2013, well after his arrival in Australia. This conclusion is informed by the fact that he does not mention it in his protection visa interview of 13 April 2013 but does describe it in his statement of 12 June 2013.
104.The documents provided by NAME WITHELD following the adjourned hearing complicate his account considerably. As noted in paragraphs 70 and 71 above, they indicate that NAME WITHELD and members of his family were the alleged perpetrators of an attack sharing striking similarities with that of which he claims to be the victim. These similarities include an incursion into commercial premises by a group of about seven or more, significant damage to those premises, a stabbing of one person, and an extortion demand of 300,000 taka.
105.When these matters were put to NAME WITHELD, his evidence was that the documents are evidence that his political enemies had twisted the events of which they had been the perpetrators so as to cast him and his family as the criminals. The principal problem with this explanation is that, on the face of the documents, the events they describe pre-date NAME WITHELD's account of it by between 15 months and five months (see the footnote to paragraph 76 above in relation to disparities in the dates in the documents).
106.The documents are suggestive of a scenario in which NAME WITHELD decamped from the village in the aftermath of the alleged attack and then sought to evade arrest by leaving the country. However, he remained insistent that no such attack occurred and that the allegations were ridiculous. He maintained that the Tribunal should construe them as evidence of charges being brought against political opponents to silence or punish them. In all of the circumstances, I am inclined to give the documents more credit than I give to NAME WITHELD's account, particularly having regard to the fact that they were apparently created well before the account he subsequently gave to immigration authorities (which is not to say that I accept that the allegations in the documents are true). Accordingly, I am not satisfied that the claimed extortion demand and the subsequent attack occurred as claimed, or at all. Further, in view of NAME WITHELD's express evidence (see paragraph 81 above) that none of his family have had any reason to fear for their safety since he left the country in 2013, I am not satisfied that any fear of persecution on NAME WITHELD's part is well-founded.
107.I note that certain of NAME WITHELD's initial claims were not maintained at the hearing. He made no mention at the hearing of his father being stabbed and, in response to the Tribunal's questions, said that his father had suffered no health effects (other than those related to his age) since he left the country. In any event, having not accepted that the alleged attack on the family shop occurred, I do not accept any of the specific events claimed in respect of it. The claim in respect of threats to kidnap his daughter he described as a general concern about kidnapping that he now no longer holds.
108.At the second hearing, NAME WITHELD told the Tribunal that the existence of the charges gave rise to a reasonable fear that, should he be returned to Bangladesh, he would suffer serious harm. He said that his arrival back in Bangladesh would reactivate the charges and that he was effectively facing a death sentence. Given that his father, uncle, and other family members were released on bail and that nothing further has happened to them, there is nothing to suggest that the case has been used as an instrument of political repression, or that it has proceeded beyond the most preliminary steps in the 10 years that have passed since the allegations were made. Other aspects of this claim are considered in terms of complementary protection below.
109.Although I consider the documents to be more reliable than NAME WITHELD's own account (as he himself initially invited me to do), there is reason to treat them with caution. I have considered the possibility that a person or persons in Bangladesh sought court documents supportive of NAME WITHELD's claims, misunderstanding the nature of the claims. This possibility is informed by the following in the DFAT country report:
5.44 Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents, can often be difficult to verify through formal channels. This is for a variety of reasons, including expectations by some officials of facilitation payments, or genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh.
Ultimately, however, it is unnecessary to make a finding on that possibility. The documents are not entirely satisfactory, either to their contents, or to their provenance. The dates in the translations make for a very jumbled narrative and there are also dates in the records that appear to have been transliterated with the dates the copies were purportedly made. I do find that, should the charges ever have been genuine, there is no evidence in them, or from the applicant, to suggest that they have proceeded.
110. Taking all of the evidence into account, I am not satisfied that:
(a) the applicant was an active member, or was identified as an active member, of the BNP, although I am prepared to accept that he may have been locally recognised as a supporter of the BNP;
(b) the applicant was the victim of an extortion attempt, whether for political reasons or at all;
(c) the applicant's family shop was attacked, in the course of which his father suffered injury, whether for political reasons or at all; and/or
(d) the applicant and his family were the subject of false criminal charges because of their actual or imputed political opinion, or at all.
111. The country information does not assess low-level BNP supporters as facing significant risk of arrest, aside from participation in violent demonstrations. There is no evidence to satisfy the Tribunal that the applicant meets any of the descriptions in the country information that might identify him as a person at risk because of his political views or activity. Accordingly, the Tribunal is not satisfied that the applicant holds a well-founded fear of persecution in Bangladesh by reason of his actual or imputed political opinion.
At [114] of its reasons, the Tribunal recorded that there was nothing in the material provided to it to suggest that the applicant had any health conditions that could give rise to any well-founded fear that he may come to harm should he be returned to Bangladesh.
On the question of whether the criterion under s. 36(2)(a) had been met or not, at [118] of its reasons the Tribunal found that the applicant did not have a well-founded fear of persecution for any reason.
On the question of complimentary protection, the Tribunal similarly found that it was not satisfied there was a real risk that the applicant would suffer from significant harm if returned to Bangladesh.
The Court finds that the Tribunal intellectually engaged in a consideration of all the applicant’s claims. That the Tribunal found against the applicant in terms of credibility was justified because of the many discrepancies in the applicant’s evidence as identified by the Tribunal. The lateness in the giving of certain evidence was a factor which influenced the Tribunal.
The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
Conclusion
Grounds 1 and 2 were merely factual statements not requiring consideration.
Grounds 3 and 4 were so vague as to be meaningless. A claim which was so lacking in particulars ought for that reason to be dismissed. [6]
[6] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J;
The Tribunal was clearly aware of the decision of the Federal Court in relation to the quashing of the earlier Tribunal’s decision when framing its reasons, because of the way in which it recorded its consideration of the applicant’s alleged BNP membership claim at [4], [25] and [94]-[96] of its reasons.
The Tribunal did not err in the way in which it conducted its review of the decision of the delegate. It appropriately relied upon country information, and there was no breach by it of s. 425 of the Act.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 February 2024
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA
1389 at [22] per Farrel J.
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