AZV15 v Minister for Immigration
[2016] FCCA 2451
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZV15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2451 |
| Catchwords: MIGRATION – Application for protection visa – whether the Tribunal made a finding which was a critical step in its ultimate conclusion for which there was no evidence – found that there was evidence for the Tribunal’s finding and, in any event, it was not a critical step in the Tribunal spokesman conclusion – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) and (aa) |
| Cases cited: Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820 |
| Applicant: | AZV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1326 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Ambi & Associates |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for judicial review filed on 12 June 2016 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1326 of 2015
| AZV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) made on 20 May 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
The issue to be determined is whether the Tribunal made a finding of fact, which was a critical step in its ultimate conclusion, in the absence of any evidence to support that finding, and if so, whether this gives rise to jurisdictional error.
The Applicant was born on 16 January 1984 in Udappu, Puttalum District, in North Western Province, Sri Lanka. He is a citizen of Sri Lanka. Prior to leaving Sri Lanka in June 2012, he lived with his wife and children in the area of his birth. He is of Tamil ethnic origin.
The Applicant’s claims of past harm, which form the basis for his fear of persecution on return to Sri Lanka, are set out in summary form below.
In his entry interview held on 22 November 2012 (CB 1-25) and in his statutory declaration attached to his application for the visa (CB 62-65) he claimed:
a)on 10 December 2010, a person from the Sri Lankan army made demands of money from him and threatened him in the presence of his son;
b)on 14 August 2011, the same person made demands for money from him. He claims he was bashed and abducted in a van and subsequently released on a promise that he would pay the money. He subsequently paid the money to this person;
c)in April 2012, the same man harassed and pushed him in a shopping centre again demanding for money. After this incident he decided that he should leave for Australia; and
d)in November 2012, after he had left for Australia, men came to his home asking his wife about his whereabouts. Subsequently, the house was burnt down.
In an email dated 21 August 2013, sent by the Applicant’s Migration Agent on his behalf, the Applicant claimed that there were two incidents in December 2010. On 3 December 2010 he saw a friend (“K”) whom he had known since 2003, who appeared to have been arrested by Sri Lankan authorities. He approached his friend to assist him. His friend told him to leave as it would cause problems for him. The Applicant was arrested by the authorities and taken to the CID’s Colombo branch, where he was detained for four days. During this time, he claims he was seriously harmed and assaulted, including having his toenails removed and hung upside down whilst being beaten. He said he was released after a lot of begging by him and his wife (CB 115).
On 26 November 2013, in a submission made by the Applicant’s Migration Agent on his behalf, the Applicant claimed that he will be persecuted on the basis of his ethnicity (as a Tamil), his membership of a particular social group (failed asylum seekers and a person who departed Sri Lanka illegally) and his imputed political opinion (association with the LTTE) (CB 311-378).
The Tribunal conducted its hearings over two days, on 11 February 2015 and 2 March 2015. The Applicant’s Migration Agent provided the Tribunal with a post-hearing submission on 1 April 2015 (CB 416-429). The submission addressed, amongst other things, credibility issues raised by the Tribunal during the hearing.
On 28 April 2015, the Tribunal invited the Applicant to comment on, or respond to, specific information in relation to the 10 December 2010 incident and the April 2012 incident (CB 431-434). The Applicant’s Migration Agent responded to this invitation, on the Applicant’s behalf, by correspondence dated 12 May 2015 (CB 435-436).
Judicial review
The Applicant’s ground of judicial review is as follows:
The Second Respondent made a finding of fact, adverse to the Applicant and critical to its conclusion that it was not satisfied that the Applicant was a person to whom Australia owed protection obligations pursuant to the Migration Act 1958 s 36(2)(a) or (aa), for which there was no evidence.
Particulars
(a) The Tribunal determined that in the recording of his interview with the delegate the Applicant had given no evidence to the effect that he had worked for the LTTE.
(b) In fact the Applicant had told the delegate and it was recorded in the interview that it was known to persons who assaulted him on 11 December 2010 that he had given help to the LTTE.
(c) Therefore the Tribunal’s finding that there was no “evidence to this effect” was in fact a finding for which there was no evidence.
The Applicant relies on the decision of the Full Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (“SFGB”), where the Full Court stated (at [18]-[20]):
18. …But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
19. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90-91.
20. On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Applicant submits that the Tribunal based its ultimate conclusion, that it was not satisfied that the Applicant was a person to whom Australia has protection obligations pursuant to s.36(2)(a) or (aa) of the Migration Act 1958 (“the Act”), on its finding that the Applicant was not a reliable witness.
The finding of the Tribunal which the Applicant impugns, is its finding that there was no record of the Applicant claiming that he had performed work for the LTTE until he gave evidence at the Tribunal. The Applicant claims that, as a consequence of this finding, the Tribunal found that it had significant and serious concerns with the reliability of the Applicant’s evidence. This adverse finding about the Applicant’s credibility was, the Applicant argues, a critical step in the Tribunal’s ultimate conclusion that it did not accept the Applicant’s claim of past persecution, that he did not have a well-founded fear of persecution and that there were no reasonable grounds to believe he would suffer significant harm as a failed asylum seeker or a person who illegally departed Sri Lanka.
The Applicant relies on an extract from the interview with the delegate held on 22 August 2013. A transcription in English of a short part of the interview has been annexed to an affidavit sworn by Mrs Nimalini Ambikaipalan on 4 July 2016. Mrs Ambikaipalan is an Australian Legal Practitioner, accredited as an Immigration Law specialist by the Law Institute of Victoria and is competent in both the English and Tamil languages. The Applicant relies on the following part of the transcription:
Officer: Did any harm come to you?
Applicant (through interpreter): Yes, they had… they beat me and also asked me some questions.
…
They said, “yesterday when I asked you to come you said you can’t come” and also they scolded me as Tamil… “Dhemalo”
“Do you think you are a big man?” And they threatened me. “We know what type of helps, what and what you have done…helps you have given to the LTTE. We know everything. Immediately we need some money.”[1]
[1]Recording of interview between Departmental officer and the Applicant dated 22 August 2013 at approximately 1h19m 50 seconds.
The Applicant submits that it is evident, from this extract of the transcript from the interview, that he had referred in the recording to it being known to the army officers, who had assaulted him on 11 December 2010, that he had given “help” to the LTTE.
Counsel for the Applicant concedes that the Applicant did not expand on the “help” that he had given, but Counsel said, neither did the delegate ask him to expand further on the suggestion that he had helped the LTTE, which was implicit in the answer. In these circumstances, the Applicant argues it was reasonable, as he told the Tribunal later, that he thought he had told the delegate about this.
Accordingly, the Applicant argues, he had given evidence to the delegate to the effect that he had worked for the LTTE, although such evidence was clearly not as detailed as his evidence before the Tribunal. The Applicant asserts that, by comparison to the delegate’s interview, the Tribunal asked him many questions about this claim. Thus, it is submitted that the Tribunal’s finding that there was no evidence in the recording of the interview that he had given evidence to that effect (that he had worked for the LTTE), was a finding for which there was in fact no evidence.
The Minister submits that the Applicant’s application for judicial review should be dismissed for the following reasons:
a)the extract of the transcript from the interview discloses only that the Applicant told the delegate that, when the army beat him and verbally abused him in 2010, the justification that they gave to him was their belief that he had worked for the LTTE;
b)this, in itself, is not evidence of the Applicant claiming that he worked for the LTTE;
c)the Tribunal’s reasoning in relation to this evidence is properly characterised as one in which the Tribunal was concerned about the veracity of the Applicant’s claims to have suffered harm at the hands of the Sri Lankan army in December 2010; and
d)the Tribunal’s conclusion, that the Applicant did not make the relevant claim about having performed work for the LTTE prior to the Tribunal hearing, was just one of a number of reasons that the Tribunal concluded that the Applicant was not a reliable witness. Consequently, even if the Tribunal erred in its conclusion about the Applicant’s interview with the delegate, there was no jurisdictional error, because its findings about the Applicant’s reliability were drawn from a number of cogent evidentiary bases.
Tribunal Decision
Before setting out the relevant extracts from the Tribunal’s decision record in relation to the impugned finding, it is appropriate to have regard to the overall structure of the Tribunal’s decision, including the way in which it dealt with the Applicant’s various claims. The Tribunal commenced by identifying the Applicant’s claims up until the point of the Tribunal hearing (CB 444-448). The Tribunal then set out, under the headings, “Evidence at the first hearing on 11 February 2015” and “Resumed hearing on 2 March 2015”, the evidence the Applicant gave to the Tribunal (CB 448-457). The Tribunal also referred to the Applicant’s post-hearing submissions dated 1 April 2015, the Tribunal’s request for comments on, or responses to, specified information and the Applicant’s response to the request (CB 458).
The Tribunal then proceeded to set out its findings and reasons. Under the heading, “Assessment of the applicant’s claims and evidence about past events”, the Tribunal dealt with various claims under the following sub-headings, “Nationality and general background”, “Claims to have experienced mistreatment in Sri Lanka”, “Claims to have worked for the LTTE”, “Claims relating to what occurred at the Omanthai checkpoint in August 2006 and at the SLA army camp in December 2010”, “Claims regarding his friend [K and what occurred on 3 December 2010”, “April 2012 incident”, “Linking [K] to the other incidents.”
I note here that, in relation to each of the claims (other than the Applicant’s nationality and general background), the Tribunal identified in its decision record its serious concerns about the reliability of the Applicant’s evidence.
Under the heading “Claims to have experienced mistreatment in Sri Lanka”, the Tribunal said (CB 460 at [82]):
For a number of reasons, the Tribunal had serious concerns about the reliability of his evidence in support of his claims to have experienced mistreatment in Sri Lanka, and, for the reasons discussed below, did not find him to be a reliable or credible witness. Indeed, his evidence about a number of significant matters was confused, contradictory and inconsistent over time, and, in addition, he failed to raise a number of significant matters until he appeared before the Tribunal and his explanations for the delay in raising those matters further undermined the reliability of his evidence and the overall credibility of his claims.
I will return shortly to the Tribunal’s treatment of one of the Applicant’s claims under the heading, “Claims to have worked for the LTTE”.
Under the heading, “Claims relating to what occurred at the Omanthai checkpoint in August 2006 and at the SLA army camp in December 2010”, the Tribunal stated that it had “serious concerns about the reliability of his responses and evidence” and that it “does not accept that his responses provide a satisfactory explanation for his inability to maintain a consistent account of his claims about these matters” (CB 463 at [97]). Further, it expressed the view that, in the context of his claims to be owed protection and the fact that these were important matters which he personally experienced, the Tribunal found his inability to maintain a consistent account of his claims and evidence “reflects poorly on his credibility and reliability as a witness” (CB 463 at [97]). Under the heading, “Claims regarding his friend [K] and what occurred on 3 December 2010”, the Tribunal was critical of the Applicant’s delay in raising this claim and his failure to provide a consistent account of the details of what occurred. The Tribunal repeated its earlier statement that, in the context of his claim for protection, these matters were important and the inability of the Applicant to maintain a consistent account “reflects poorly on his credibility and reliability as a witness” (CB 465 at [104]). Under the heading, “April 2012 incident”, the Tribunal once again expressed its concern about the failure of the Applicant to maintain a consistent account of what occurred in April 2012, and said that it did not accept the Applicant’s explanation for his inability to maintain a consistent account. Once again, the Tribunal repeated its earlier statement that in the context of his claim for protection, these matters were important and the inability of the Applicant to maintain a consistent account “reflects poorly on his credibility and reliability as a witness” (CB 466 at [107]).
I now turn to the Tribunal’s consideration of the Applicants claims to have performed work for the LTTE.
The Tribunal commenced its consideration of this claim by stating (CB 460 at [83]):
At the first hearing on 11February 2015, he stated, for the first time, that he had performed work, including as a security guard, for the LTTE in Vannakulam in 2003, 2005 and 2006. He claimed that, for most of the time he worked in Vannakulam, he patrolled the sea shore for the LTTE three to four nights a week and each Friday, which was his day off from fishing. He said the LTTE trusted him and he wanted to help them. He did not carry a weapon while acting as a security guard/lookout, but he had access to a stash of weapons that were stored close to where he patrolled. He also dug holes and transported materials for the LTTE.
The Tribunal then noted that it asked him to explain why he had not raised such significant claims before. It noted that the Applicant said that he had mentioned it to the delegate at the last interview. The Tribunal went on to say (CB 460 at [84]):
…there is no record of him having ever made any reference to the Department about his having performed work for or being involved in any way with the LTTE. As put to him at the hearing, it was difficult to accept that he made those statements to the delegate when there is no record of him making comments to that effect. In response, he said he was in shock that there was no record of him making those statements; however, later in the hearing, he confirmed that he listened to the CD recording of his interview with the delegate, and, when asked if he recalled hearing himself talk about his past work for the LTTE, he said he ‘should agree’ with the Tribunal, as it has ‘probably listened and checked everything’, and he ‘thinks he told the delegate but does not think it was in the recording’.
(my emphasis)
At [88] of the decision record, the Tribunal said (CB 461):
The Tribunal found his claim, which he subsequently distanced himself from, that he did in fact tell the delegate at the interview about his work for the LTTE, particularly concerning because, as discussed with him, there is no record of him making such a statement at the interview. His migration agent confirmed at the hearing that she was not aware of him having made statements to that effect at his interview with the delegate, and neither the delegate’s decision or the recording of the interview disclose that he given evidence to the effect, either before, during or after the interview. His attempts to reconcile his claim to have told the delegate with the fact that there was no record to support the claim, by saying he ‘thought he told the delegate’, and his subsequent, unsubstantiated assertion that was possible the interpreter may have made a mistake, cause the Tribunal to have significant concerns with the reliability of his evidence.
(my emphasis)
At [89] of the decision record, the Tribunal said (CB 461):
…Further, his unsubstantiated and then retracted attempt to say he did raise it at his interview further undermined the reliability of this evidence…
It is plainly evident, from the above extracts from the decision record, where the Tribunal considered the Applicant’s claim to have performed work for the LTTE:
a)the Applicant claimed at the Tribunal hearing that he performed work for the LTTE and gave details about that work;
b)the Tribunal found there was no record of the Applicant making the claim prior to the hearing, including during the interview the Applicant had with the delegate in August 2013;
c)the Tribunal was concerned about the delay by the Applicant in raising this significant claim; and
d)the Tribunal found that the Applicant’s explanation that he did raise it at the interview in circumstances where there was no record of him having raised as at the interview further undermined his credibility.
The Tribunal’s conclusions regarding the Applicant’s credibility overall, and the connection to its findings with respect to the Applicant’s claims, are set out in the following extracts from the decision record (CB 467-469):
111. Considered cumulatively the concern of the Tribunal holds about the applicant’s credibility on these matters lead it to find that he was not a reliable witness and that the account of events on which his protection claims are based are not true. As discussed above, his evidence about significant aspects of his claims was inconsistent over time, and the Tribunal considers that, on more than one occasion, he was willing to adjust and adapt to the evidence to fill in perceived gaps in his claims and reconcile otherwise inconsistent statements. In addition, he failed to raise a number of significant matters until he appeared before the Tribunal, more than 30 months after he arrived in Australia, and, the Tribunal formed the view that his explanations for why that occurred further undermined his reliability as a witness. Moreover, at times he was confused and uncertain in the answers he gave to questions which, if the events claimed had taken place, the Tribunal would have expected clear answers, and, at other times, he was hesitant in giving responses and often did not provide clear or direct answers, but gave vague and general responses…
…
114. Accordingly, for all of the above reasons, in light of its findings that he was not a reliable witness, the Tribunal has no confidence in accepting, and does not accept, that his evidence about what occurred to him in Sri Lanka was based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection. On the evidence before it, the Tribunal does not accept that he ever performed any work for or provided any assistance to the LTTE in Sri Lanka, or that he was ever subjected to extortion or was mistreated by officers or agents of the SLA, the CID or any other GoSL authority in Sri Lanka, for any of the reasons claimed. On the evidence before it, the Tribunal does not accept that he was ever questioned or interrogated by the SLA, the CID or any other GoSL authority in Sri Lanka in relation to a suspicion that he was involved with or connected to the LTTE or any person or group involved in weapons smuggling or that he was ever suspected by any other person or group or agent of the GoSL for reasons relating to suspected involvement with the LTTE or weapons smuggling. For these reasons, on the evidence before it, the Tribunal does not accept that, since he departed, his family have been questioned about him by any person or group or that his family have been mistreated because of anything to do with him.
115. …The Tribunal does not accept that, although he was questioned by the SLA at the Omanthai checkpoint in August 2006, he was ever suspected of being involved with the LTTE because of that incident.
Consideration
I am not satisfied that the Tribunal fell into jurisdictional error for the following two reasons:
a)I am not satisfied that there was no evidentiary basis for the Tribunal’s finding that the Applicant had not earlier claimed to work for the LTTE; and
b)the Tribunal’s finding could not be said to be a critical step in its ultimate conclusions about his credibility or that he did not satisfy s.36(2)(aa) of the Act.
In Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820, Justice Sundberg considered various authorities in relation to the “no evidence” grounds of judicial review. Having referred to the relevant extracts from SFGB, Justice Sundberg said at [16]:
In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24], after quoting the second above paragraph from SFGB, Ryan J said:
“by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error.”
(Emphasis in original.)
Why his Honour made this clarification appears from [22] and [26]:
“it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as ‘unclear’, ‘incoherent’ or ‘implausible’. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal.
…
In the present case the impugned rejection by the Tribunal of certain of the appellant’s assertions of fact about assistance rendered to the LTTE or the LTTE’s knowledge of the Army’s intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point.”
In MZYIC v Minster for Immigration and Citizenship [2010] FCA 1368, Bromberg J stated at [23]:
Both parties accept that the Tribunal’s reasons for decision may reveal of jurisdictional error if the Tribunal has made a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support the finding: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19].
I accept that, in this case, the Tribunal made it clear that it had listened to the Applicant’s interview with the delegate in August 2013 before making its finding that there was no record of a claim by the Applicant that he had performed work for the LTTE, prior to the Tribunal hearing.
The resolution of part of the Applicant’s argument depends on how the Applicant’s responses to the delegate are to be characterised.
I am prepared to accept, given the difficulty that might arise in conveying accurately (as compared to competently) the meaning of “helps”, that the use of this word may well refer to support for the LTTE or even work for the LTTE. However, read fairly in context, I agree with the Minister, that the Applicant’s evidence was that those who threatened and harmed him (from the Sri Lankan army) said to him words to the effect, “we know what (helps/support/work) you have given to the LTTE”. That is, the Applicant was in his evidence at the interview reflecting the belief of those who were threatening him and assaulting him. In my opinion, there is a significant difference between referring to the belief of those whom the Applicant claims harmed him, and to stating that he performed work for the LTTE. The latter claim is a very significant claim, in circumstances where a Sri Lankan Tamil claims to fear persecution or significant harm on return to Sri Lanka, because of an imputed political opinion and as a failed asylum seeker and person illegally departing Sri Lanka. This is because, without doubt, his profile becomes that of a person the Sri Lankan authorities would be interested in.
The Tribunal’s findings must also be considered in context. When the Tribunal states that “there is no record of him making such a statement at the interview” (CB 461 at [88]), the “statement” the Tribunal is referring to is the very detailed evidence the Applicant gave to the Tribunal about the nature of the work he performed (see [27] above). I am satisfied that this was a finding for which there was evidence before the Tribunal. In my view, it is clear that the Applicant did not say at the interview with the delegate that he performed work for the LTTE in 2003, 2005 and 2006 as a security guard patrolling areas, including where weapons were stored, digging holes and transporting materials. All he said to the delegate was that he was suspected, by those threatening him and harming him, as having helped/supported/worked for the LTTE.
In any event, even if I were to accept the Applicant’s submission that the use of the word “helps” by the Applicant should be construed (because of the difficulties in language) as a reference to working for the LTTE, I am not satisfied that it can be said that the finding by the Tribunal that there was no record that Applicant had raised his claim that he had worked for the LTTE either before the delegate or subsequently, was a critical step in its ultimate finding.
It is manifestly clear from the decision record in which the Tribunal considers the Applicant’s evidence and makes its findings, that it had serious concerns with all of the Applicant’s evidence and, in particular, his consistency and reliability in relation to all of the Applicant’s claims (see [24] above). Setting aside the Tribunal’s finding, that there was no record of the Applicant claiming before the delegate that he worked for the LTTE, it is clear that the Tribunal had concerns that after the interview, in circumstances where the Applicant was represented, this claim was not raised until the hearing. It must be recalled that, in the interim, from this interview until the hearing, the Applicant’s Migration Agent provided further explanations of the Applicant’s claims and submissions. At no point was the Applicant’s statement to the delegate enlarged upon, so as to claim that he worked for the LTTE.
At [82] of the decision record (CB 460), the Tribunal commences the paragraph by saying, “for a number of reasons, the Tribunal had serious concerns about the reliability of his evidence in support of his claims…” The Tribunal then proceeds to consider separately, each of the Applicant’s claims, and in its penultimate conclusion on credibility at [111] of the decision record (CB 467) is as follows:
Considered cumulatively the concerns the Tribunal holds about the applicant’s credibility on these matters lead it to find that he was not a reliable witness and that the account of events on which his protection claim based are not true. …
It follows, in my opinion, that even absent the Tribunal’s finding that there was no record of the Applicant having made his claim that he performed work for the LTTE at the interview with the delegate, and its subsequent criticism of what it said was the Applicant’s attempts to reconcile this with unsupported statements, there remains in the decision record, expressions by the Tribunal of numerous concerns with the Applicant’s claims. In other words, the Tribunal’s particular finding, which the Applicant asserts was one based on “no evidence”, was one of many findings regarding the unreliability of the Applicant’s evidence, which were critical to the Tribunal’s adverse credibility findings, upon which it ultimately concluded that the Applicant failed to satisfy s.36(2)(a) and (aa) of the Act.
Accordingly, I find that no jurisdictional error arises from this ground of judicial review.
Conclusion
For the reasons set out in this judgement, I will Order that the application for judicial review be dismissed, with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 22 September 2016
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